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CASES 


ON 


CRIMINAL  PROCEDURE 

(ABRIDGED  EDITION) 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 

WILLIAM  E.   MIKELL,   B.  S. 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  PENNSYLVANIA 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL  EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1912 


Copyright,  1910 

BY 

WEST  PUBLISHING  COMPANY 


Copyright,  1912 

BT 

WEST  PUBLISHING  COMPANY 
(Mik.Ck.Pr.Aru.Ed.) 


To 

WILLIAM  DRAPER  LEWIS,   B.S.,  LL.B.,  Ph.  D. 

who  during  many  years  of  close  association  has  been  a  constant  friend, 

a  helpful  critic,    and  an  inspiring  colleague 

(iii)* 


670177 


THE  AMERICAN  CASEBOOK  SERIES 


The  first  of  the  American  Casebook  Scries,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Mr.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  Until  1915  this 
preface  appeared  in  each  of  the  volumes  published  in  the  series. 
But  the  teachers  of  law  have  moved  onward,  and  the  argument 
that  was  necessary  in  1908  has  now  become  needless.  That  such 
is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements: 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
©f  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  jiiethods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems. From  this  masterly  report,  so  replete  with  brilliant  analysis 
and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says : 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 

(V) 


VI  PREFACE 

of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  inrtruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satit  factonly  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  tliis 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows: 

"It  emphasizes  the  scientific  character  of  legal  thought;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadcciuate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases  ;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen ;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 

The  general  purpose  and  scope  of  this  scries  were  clearly  stated  in 
the  original  announcement : 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 


pi!i:fach  VU 

tr.tion?  of  the  classroom,  on  the  fundamental  subjects  of  legal  erliica- 
tion,  which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically ;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England ;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

■'The  importance  and  difficultv  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  publi-shed  books  on  the  following  subjects : 

Administrative  Lazv.  By  Ernst  Freund,  Professor  of  Law  in  the 
University  of  Chicago. 

Agency.  By  Edwin  C.  Goddard,  Professor  of  Law  in  the  University 
of  Michigan. 

Bills  and  Notes.  Second  Edition.  By  Howard  L.  Smith.  Professor  of 
Law  in  the  University  of  Wisconsin,  and  Underbill  Moore,  Pro- 
fessor of  Law  in  Columbia  University. 

Carriers.  By  Frederick  Green,  Professor  of  Law  in  the  University  of 
Illinois. 

Conflict  of  Lazes.  By  Ernest  G.  Lorenzen,  Professor  of  Law  in 
Yale  University. 

Constitutional  Lazv.     By  James  Parker  Hall,  Dean  of  the  Faculty  of 

Law.  in  the  University  of  Chicago. 
Contracts.    By  Arthur  L.  Corbin,  Professor  of  Law  in  Yale  University. 


viii  rnrFACEJ 

Corporations.  Ey  Harry  S.  Richards,  Dean  of  the  Kaculty  of  Law  in 
the  University  of  Wisconsin. 

Criminal  Law.  By  William  E.  Mikell,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Pennsylvania. 

Criminal  Procedure.  By  William  E.  Mikell,  Dean  of  the  Faculty  of 
Law  in  the  University  of  Pennsylvania. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law  in  the  University 
of  Chicago,  and  Barry  Gilbert,  of  the  Chicago  Bar. 

Equity.  By  George  H.  Boke,  formerly  Professor  of  Law  in  the  Uni- 
versity of  California. 

Equity.  By  Walter  Wheeler  Cook,  Professor  of  Law  in  Yale  Uni- 
versity.   Volume  L     Volumes  2  and  3  in  preparation. 

Evidence.  By  Edward  W.  Hinton,  Professor  of  Law  in  the  Universi- 
ty of  Chicago. 

Insurance.  By  William  R.  \'ance.  Professor  of  Law  in  Yale  Uni- 
versity. 

International  Laiv.  By  James  Brown  Scott,  Lecturer  on  International 
Law  and  the  Foreign  Relations  of  the  United  States  in  the  School 
of  Foreign  Service,  Georgetown  University. 

Legal  Ethics,  Cases  and  Other  Authorities  on.  By  George  P.  Costigan, 
Jr.,  Professor  of  Law  in  the  University  of  California. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  M.  Kales,  late  of 
the  Chicago  Bar,  and  Chester  G.  Vernier,  Professor  of  Law  in 
Stanford  University. 

Pleading  (Cominon  Laiv).  By  Clarke  B.  Whittier,  Professor  of  Law 
in  Stanford  University,  and  Edmund  AL  IMorgan,  Professor  of 
Law  in  Yale  University. 

Property  (Future  Interests).  By  Albert  M.  Kales,  late  of  the  Chicago 
Bar. 

Property  (Personal).  By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
University  of  Chicago. 

Property  (Rights  in  Land).  By  Harry  A.  Bigelow,  Professor  of 
Law  in  the  University  of  Chicago. 

Property  (Titles  to  Real  Property).  By  Ralph  W.  Aigler,  Professor 
of  Law  in  the  University  of  Michigan. 

Property  (Wills,  Descent,  and  Administration).  By  George  P.  Costi- 
gan, Jr.,  Professor  of  Law  in  the  University  of  California. 

Quasi  Contracts.  By  Edward  S.  Thurston,  Professor  of  Law  in  Yale 
University. 

Sales.  By  Frederic  C.  Woodward,  Professor  of  Law  in  the  University 
of  Chicajro. 


PKEFACB  1^ 

Surcfysfi'fy.  Ey  Crawford  D.  Hcning,  formerly  Professor  of  Law 
in  the  University  of  Pennsylvania. 

Torts.  By  Charles  M.  Hepburn,  Dean  of  the  Faculty  of  Law  in  the 
University  of  Lidiana. 

Trade  Regulation.  By  Herman  Oliphant,  Professor  of  Law  in  Colum- 
bia University. 

Trusts.  By  Thaddeus  D.  Kenneson,  Professor  of  Law  in  the  Univer- 
sity of  New  York. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
m  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
tuller  understanding  and  a  wider  use  of  the  case  method. 

William  R.  Vaxcb, 

General  Editor. 


TABLE  OF  CONTENTS 


CHAPTER  I. 

Section  ^^^^ 

Jurisdiction  ats'd   Venue 1 


CHAPTER  II. 

Pbosecution     ^^ 


CHAPTER  III. 

Arrest. 

1.  What   Constitutes   Arrest 22 

2.  Who    May    Arrest 24 

3.  Rights  and  Duties  of  Person  jNIaking  Arrest 29 


CHAPTER  IV. 
Extradition    37 

CHAPTER  V. 
Proceedings  before  Magistrate ,. .    45 

CHAPTER  VI. 
Bail    4S 

CHAPTER  VII. 
The  Grand  Jury 52 

CHAPTER  VIII. 

The  Indictment. 

1.     Form  and  Requisites  of  the  Indictment  in  General 57 

I.     The    Caption 57 

II.    The  Statement  of  the  Offense 59 

III.     The    Conclusion 66 

IV.     Duplicity,  Repugnancy,  and  Surplusage 68 

Mik.Cb.Pb.(Abridged  Ed.)         (xi) 


Xll  TABLE   OF   CONTENTS 


CHAPTER  IX. 


Thb   Indictment — Continued. 

Section  Pagp 

1.  Particular    Averments 77 

I.     Averment  of  Facts  and  Circumstances  Necessary  to  Consti- 
tute  the  Offense 77 

II.     Averment  of  Time  and  Place  of  the  Offense 90 

III.     Description  of  Persons  Connected  with  the  Offense 95 

IV.  Description,  Ownership,  and  Value  of  Property 100 

V.  Averment  of  the  Degree  of  Defendant's  Connection  with  the 

Oflense    106 

2.  Joinder    of   Defendants 108 

3.  Joinder  of   Offenses 110 

4.  Amendments    112 


CHAPTER  X. 

Arraignment,  Pleas,  and  Motions, 

1.  Arraignment  and  Pleas  in  General 116 

2.  Nolle   Prosequi  and  Motion  to  Quash 122 

3.  Plea  of  Former  Jeopardy 125 

CHAPTER  XI. 
Presence  of  Defendant  at  Trial 1.^9 

CHAPTER  XII. 
Verdict    I44 


CHAPTER  XIII. 


New    Trial. 


159 


CHAPTER  XIV. 
Arrest   of   Judgment iqq 

CHAPTER  XV. 
Judgment,  Sentence,  and  Execution 172 

CHAPTER  XVI. 
Appeax,  Writ  of  Error,  and  Certiorari ■ 179 


TABLE    OF  CASES 

fCASES  CITED  IN   FOOTNOTES  AKE   INDICATED    BY  ITALICS.      WHERE  SMALL  CAPITALS 
ARE   USED,    THE    CASE  IS   REFERRED   TO   IN   THE   TEXT] 


Adams  v.  People 

Adams  V.   State 

Anouymous 31,  32,  53,  67 

lOS,  113,  128 


Banson  v.  Ossley 

Barnesciotta  v.  People. 

Bepley  v.   State 

Blodgett  V.  Race 

Burden,   Ex  parte 

Burrell  v.  State 

Burrough's  Case 


Campton  v.  State 

Carlisle  v.   State 

Cbampney's   Case 

Charge  to  the  Grand  Jury 

Cornmmvivealth  v.  Brown 102, 

Commonwealth  v.  Buckley 

Commonwealth  v.  Carey 

CoJrMONWEALTH   V.   CaRRINGTON,  .  . 

Commonwealth  v.  Gibson 

Commonwealth  v.  Green 

Commonwealth  v.  Hersey 

Vommomcealth  v.  Sutherland.... 

Commonwealth  v.  Tobin 

Commonwealth  v.  Twitchell 

Custodes  V.  Tawny  &  Norwood... 


Evans  v.  State. 


Fitzharris'  Case.  . 
Fulford  V.  State. 
Fults  V.  State 


Gaffney  v.  People 

Glidewell  v.  State 

Gray  v.  Commonwealth. 
Grosse   v.  State 


Hack  V.  State 

Ilarman  v.   Jacob 

Haskins  v.^  People 

Hatchett  v.  Commonwealth. 
Hewitt  V.  State 


Page 

3 

142 

90, 

144 

106 
96 

165 
45 

175 

175 
66 

171 

10 

132 

47 

171 

97 

24 

150 

146 

160 

85 

133 

149 

69 

109 

62 

117 

74 

177 

182 

158 

160 

22 

117 

85 

5 

10<5 
12 


Hopt  V.  People  of  the  Territory  of 

Utah  

Hornberger  v.  State 

Hume  V.  Ogle 

Hunter  v.  Commonwealth 

Hutchinson's    Case 


Joan  V.  Commonwealth. 

Jones   v.   State 

Jones  &  Bever's  Case. . 


Kidd  V.  Territory. 
Klein  v.   People. . 


Lacetield  v.   State... 

Long's    Case 

Longfelloio  v.  State. 


McCue  V.  Commonwealth. 

Mackalley's  Case 

Mohr,  In  re 

Molett  V.  State 

Morey  v.  Commonwealth.. 


Page 

139 
182 
71 
151 
126 

182 

62 

127 

174 
153 

170 
179 
149 

172 
29 
40 
91 

136 


Odington  v.  Darby 112 


Pearce  v.  State. . . 
People  V.  Bennett. 
People  V.  Bogart. . 
People  V.  Davis. . . 
People  V.  Ptodley. . . 


Regina  v.  Biss 

Regina  v.  Faderman... 

Regina  v.  Nugent 

Regina  v.  Ridpath 

Regina  v.  Rogers 

Regina  v.  Russell 

Regina   v.  Templeman. 

Rex  V.  

Rex   V.   Catterall 

Rex  V.  Clerk 

h'ex  V.  Douglass 

Rex  V.  Forsyth 

Rex  V.  Foster 


83 

58 

104 

124 

114 

9S 
120 

23 

50 
7 

53 
139 

95 
173 

66 
103 
102 

99 


Mik.Ce.Pb.(Abridged  Ed.)         (xiii) 


XIV 


TABLE    OF    CASES 


Page 

Hex  V.  Jane  D 1-T 

Hex  V.  Johnson 102 

Rex  V.  Judd 48 

Rex  V.  Kettle 101 

Rex  V.  Kimberley 49 

Rex   V.  Legingham 145 

Rex  V.  Loom 103 

Rex  V.  Lord  Fltzwater 157 

Rex  V.  Mason 91 

Rex  V.  Maicliey 164 

Rex  V,  Morris 73 

Rex  V.  Oxford 159 

Rex  V.  Pepper 48 

Rex  V.  Philips 109 

Rex  V.  Piiddifoot 104 

Rex  V.  Robe 66 

Rex  V.  Seton 179 

Rex  V.  iStride 77 

Rex  V,  Sudbury 110 

Rex   v.   Taylor S 

Piex  V.  Thompson 108 

Rex  V.  Trigg 87 

Rex  V.  Turner 154 

Rex  V.  Whitehead 65 

Rex  V.  Wilkes 133 

Rex  V.  Wyndham 49 

Robbins  v.  State 4 

Roberts   v.   State 133 

Rough's  Case 78 

Russen  V.  Lucas 22 

Scavage  v.  Tateham 47 

Selvester  v.  United  States 154 

Semayne's   Case 36 

Simpson  v.  State 2 

Smith  V.  State 68 

Sprouse    V.    Commonwealth 69 

State  V.  Anderson   18 

State  V.  Arden    106 

State  V.  Auburn   92 

State  V.  Baker    93 

State  V.  P.assett   103 

State  V.  Beaton    92 

State  V.  Benham    128 

State  V.  Carver    168 

State  V.  Colly    63 

State  V.  Conley    80 

State  V.   Corp 75 


Page 

State  V.  Dandy  73 

State  V.  Dawkins   148 

State  V.  Doran   89 

State  V.  Eaves    164 

State  V.  Edwards    64 

State  V.  Ellison 12 

State  V.  French   155 

State  V.  Gilbert    65 

State  V.  Green    152 

State  V.  Haddonfield  &  C.  Turn- 
pike   Co 84 

State  V.  Hickling   123 

State  V.  Hodges  87 

State  V.  Keerl  79 

State  V.  Kelm   20 

State  V.  Kennedy    93 

State  V.  Lohmdn    171 

State  V.  McDowell    99 

State  V.  Neddo    108 

State  V.  RifCe    125 

State  V.  Rosenbaum    135 

State  V.  Sales     72 

State  V.  Seaborn    54 

State  V.  Smith    122 

State  V.  Sutcliffe  166 

State  V.  Taylor    27 

State  V.  Vann    167 

State  V.  Watson  121 

State  v.  Whitney 64 

State  v.  Williamson 62 

State  V.  Woolscy    143 

State  of  Kentucky  v.  Denuison. .  37 

Taff  v.  State 180 

Terbill  v.  Superior  Court 115 

Tully  V.  Commonwealth 108 

United  States  v.   Brown 75 

United  States  v.  Davis 3 

United  States  v.  Qilhert 62,  130 

United  States  v.  Porter 75 

United  States  v.  Rice 32 

United  States  v.  Sanges 184 

Windham  v.  Clere 45 

Young  V.  Rex Ill 


6 


CASES  ON 
CRIMINAL  PROCEDURE 

(ABRIDGED  EDITION) 


CHAPTER  I 
JURISDICTION  AND  VENUE 


If  two  of  the  king's  subjects  go  over  into  a  foreign  realm  and  fight 
there,  and  the  one  kill  the  other,  this  murder,  being  done  out  of  the 
realm,  cannot  be  for  want  of  trial  heard  and  determined  before  the 
common  law.  *  *  *  If  A.  give  B.  a  mortal  wound  in  a  foreign 
country,  B.  cometh  into  England  and  dieth,  this  cannot  be  tried  by  the 
common  law,  because  the  stroke  was  given  there,  where  no  visne  can 
come.^  *  *  *  If  a  man  be  stricken  upon  the  high  sea  and  dieth  of 
the  same  stroke  upon  the  land,  this  cannot  be  enquired  of  by  the  com- 
mon law,  because  no  visne  can  come  from  the  place  where  the  stroke 
was  given  (though  it  were  within  the  sea  pertaining  to  the  realm  of 
England,  and  within  the  ligance  of  the  king). =^  *  *  *  And  before 
the  making  of  the  statute  of  2  Edw.  VI,  if  a  man  had  been  feloniously 
stricken,  or  poisoned  in  one  county,  and  after  had  died  in  another 
county,  no  sufficient  indictment  could  thereof  have  been  taken  in  either 
of  the  said  counties,  because,  by  the  law  of  the  realm  the  jurors  of  one 
county  could  not  enquire  of  that  which  was  done  in  another  county.^ 
It  is  provided  by  that  act  that  the  indictment  may  be  taken,  and  the 
appeal  brought  in  that  county,  where  the  death  doth  happen. 

3  Coke,  Inst.  48. 

1  Coropare  Commonwealth  v.  Kunzmann,  41  Pa.  429  (1S62) :  Hanks  v. 
State,  13  Tex.  App.  2S9  (1SS2) ;  Rex  v.  Russell,  20  Cox,  C.  C.  51  (1901); 
State  V.  Cutshall,  110  N.  C.  538.  15  S.  E.  261,  16  L.  R.  A.  130  (1892). 

2  It  is  provided  by  Rev.  St.  U.  S.  §  730  (U.  S.  Comp.  St.  1901.  p.  585).  that 
In  such  case  the  courts  of  the  district  into  which  the  offender  is  first  brought 
shall  have  jurisdiction.  St.  2  Geo.  II,  c.  21,  provided  that  when  the  stroke 
Is  given  in  Enizland  and  the  death  occurs  out  of  England,  or  the  reverse, 
the  homicide  may  be  inquired  of  in  that  part  of  England  where  either  the 
death  occurred  or  the  stroke  was  given.  The  present  statute,  similar  in  its 
provisions,  is  St.  24  &  25  Vict  c.  100,  §  10. 

3  Hale  says  (page  426) :  "It  was  douhtful  whether  he  were  indictable  or 
triable  in 'either,  but  the  more  common  opinion  was,  that  he  might  be 
indicted  -where  the  stroke  was  given."    See  Year  Book,  7  Hen.  VII,  p.  8. 

Mik.Ce.Pr. (Abridged  Ed.) — 1 


2  JURISDICTION   AND    VENUE  (Ch.  1 

SIMPSON  V.  STATE. 

(Supreme  Court  of  Georgia,  1S93.    92  Ga.  41,  17  S.  E.  0S4.) 

Indictment  for  assault  to  murder. 

Lumpkin,  j.*  *  *  *  Under  the  evidence  introduced  in  behalf  of 
the  state,  and  which  the  jury  evidently  believed  to  be  true,  the  ac- 
cused shot  twice  at  the  prosecutor,  intending  the  balls  from  the  pistol 
used  to  take  effect  upon  him.  At  the  time  of  the  firing  the  prosecutor 
was  in  a  boat  upon  the  Savannah  river,  and  within  the  state  of  Georgia, 
and  the  accused  was  standing  upon  the  bank  of  the  river  in  the  state 
of  South  Carolina.  It  was  conceded  that  if  either  or  both  of  the  balls 
had  struck  the  prosecutor  an  offense  of  some  kind  would  have  been 
committed  in  Georgia,  upon  the  idea  that  the  act  of  the  accused  took 
effect  in  this  state ;  but  it  was  contended  that,  inasmuch  as  the  prose- 
cutor was  not  struck,  no  effect  whatever  was  produced  in  Georgia 
by  the  act  in  question. 

This  contention  is  not  well  founded  in  point  of  fact,  for  the  evidence 
shows  conclusively  that,  although  the  prosecutor  was  not  injured,  the 
balls  did  strike  the  water  of  the  river  in  close  proximity  to  him,  within 
this  state,  and  therefore  it  is  certain  that  they  took  effect  in  Georgia, 
although  not  the  precise  effect  intended,  assuming  that  the  verdict 
correctly  finds  it  was  the  deliberate  purpose  of  the  accused  to  actually 
shoot  at  the  prosecutor.  What  the  accused  did  was  a  criminal  act,  and 
it  did  take  effect  in  this  state.  Mr.  Bishop  says :  "The  law  deems  that 
a  crime  is  committed  in  the  place  where  the  criminal  act  takes  effect. 
Hence,  in  many  circumstances,  one  becomes  liable  to  punishment  in  a 
particular  jurisdiction  while  his  personal  presence  is  elsewhere.  Even 
in  this  way  he  may  conmiit  an  offense  against  a  state  or  county  upon 
whose  soil  he  never  set  his  foot."  1  Bish.  Grim.  Proc.  §  53.  And  sec 
Bish.  Grim.  Law,  §  110. 

Of  course,  the  presence  of  the  accused  within  this  state  is  essential 
to  make  his  act  one  which  is  done  in  this  state,  but  the  presence  need 
not  be  actual.  It  may  be  constructive.  The  well-established  theory  of- 
the  law  is  that,  where  one  puts  in  force  an  agency  for  the  commis- 
sion of  crime,  he,  in  legal  contemplation,  accompanies  the  same  to  the 
point  where  it  becomes  effectual.  Thus,  a  burglary  may  be  committed 
by  inserting  into  a  building  a  hook  or  other  contrivance  by  means  of 
which  goods  are  withdrawn  therefrom ;  and  there  can  be  no  doubt 
that,  under  these  circumstances,  the  burglar,  in  legal  contemplation, 
enters  the  building.  So,  if  a  man  in  the  state  of  South  Carolina  crim- 
inally fires  a  ball  into  the  state  of  Georgia,  the  law  regards  him  as  ac- 
companying the  ball,  and  as  being  represented  by  it,  up  to  the  point 
where  it  strikes.  If  an  unlawful  shooting  occurred  while  both  the 
parties  were  in  this  state,  the  mere  fact  of  missing  would  not  render  the 
person  who  shot  any  the  less  guilty.     Consequently,  if  one  shooting 

*  Part  of  this  ca.'^e  is  omitted. 


Ch.  1)  JURISDICTION   AND    VENUE  '  3 

from  another  state  ;?oes,  in  a  legal  sense,  where  his  bullet  goes,  the 
fact  of  his  missing  the  object  at  which  he  aims  cannot  alter  the  legal 
principle.     *     *     * 

In  Adams  v.  People,  1  N.  Y.  173,  it  appeared  that  the  accused  forged 
a  paper  in  Ohio,  upon  which  he  procured  money  in  New  York,  through 
an  innocent  agent,  without  going  into  the  latter  state.  He  afterwards 
voluntarily  went  into  that  state,  and  was  indicted  and  tried  for  the 
crime.  It  was  conceded  by  both  court  and  counsel  that  he  was  guilty 
of  committing  the  crime  in  the  state  of  New  York,  and  the  question 
upon  which  the  case  turned  was  simply  whether  or  not,  inasmuch  as 
he  owed  no  allegiance  to  that  state,  he  could  be  tried  and  punished 
therein.  In  U.  S.  v.  Davis,  2  Sumn.  482,  Fed.  Cas.  No.  14,932,  it  ap- 
peared that  a  gun  was  fired  from  an  American  ship  lying  in  the  har- 
bor of  Raiatea,  one  of  the  Society  Isles,  by  which  a  person  on  a  schoon- 
er belonging  to"  the  natives,  and  lying  in  the  same  harbor,  was  killed ; 
and  it  was  held  that  the  act,  in  contemplation  of  law,  was  done  on 
board  the  foreign  schooner,  where  the  shot  took  effect,  and  that  juris- 
diction of  the  crime  belonged  to  the  foreign  government,  and  not  to 
the  courts  of  the  United  States. 

In  Hawes  on  Jurisdiction  (section  110)  it  is  laid  down  that  "a  crime 
may  be  committed  within  the  jurisdiction  of  a  state,  although  the  per- 
son committing  it  never  was  within  its  borders,  if  the  act  takes  effect 
there."  An  interesting  discussion  pertinent  to  the  question  involved 
may  be  found  in  6  Crim.  Law  Mag.,  beginning  on  page  155,  in  an  ar- 
ticle entitled  "Dynamiting  and  Extraterritorial  Crime."  "A  party  who, 
in  one  jurisdiction,  or  in  one  county,  may  put  in  operation  a  force  that 
does  harm  in  another,  may  be  liable  in  either  for  the  offense."  Brown, 
Jur.  §  92.  This  section  also  contains  numerous  illustrations  which 
are  apt  and  pertinent.     See,  also,  Reg.  v.  Rogers,  14  Cox,  Cr.  Cas.  22. 

The  above  authorities  demonstrate  beyond  question  that  a  criminal 
act  begun  in  one  state  and  completed  in  another  renders  the  person 
who  does  the  act  liable  to  indictment  in  the  latter.  In  view  of  these 
authorities,  there  cannot  in  the  present  case  be  any  doubt  whatever 
that  Simpson  would  have  been  indictable  in  Georgia  if  a  ball  from  his 
pistol  had  actually  wounded  Sadler.  That  this  would  be  true  is  too 
well  established  for  serious  controversy.  The  able  and  zealous  coun- 
sel for  the  plaintiff  in  error  candidly  conceded  that  such  would  be  the 
law,  but  contended  that,  as  the  balls  "took  no  effect  in  Georgia,"  the 
entire  act  of  the  accused  was  committed  in  South  Carolina,  and  that 
he  really  did  nothing  in  this  state. 

We  have  endeavored  to  show  that  this  contention  is  not  sound.  As 
we  have  already  stated,  the  act  of  the  accused  did  take  effect  in  this 
state.  He  started  across  the  river  with  his  leaden  messenger,  and  was 
operating  it  up  to  the  moment  when  it  ceased  to  move,  and  was,  there- 
fore, in  a  legal  sense,  after  the  ball  crossed  the  state  line,  up  to  the 
moment  that  it  stopped,  in  Georgia.  It  is  entirely  immaterial  that  the 
object  for  which  he  crossed  the  line  failed  of  accomplishment.  It  hav- 
I 


4  JURISDICTION   AND    VENUE  (Ch.  1 

ing  been  established  by  abundant  authority  and  precedent  that  in  crime 
there  may  be  a  constructive  as  well  as  an  actual  presence,  there  can  be, 
in  a  case  of  this  kind,  in  which  the  act  of  the  accused,  when  analyzed, 
is  simply  an  attempt  to  unlawfully  wound  another  by  shooting,  no  ra- 
tional distinction  in  principle,  as  to  the  question  of  jurisdiction,  wheth- 
er the  attempt  is  successful  or  not.  The  criminality  was  complete,  and 
the  offense  was  perpetrated  in  Georgia,  irrespective  of  results. 
*     *     * 

Judgment  affirmed." 


ROBBIXS  V.  STATE. 

(Supreme  Court  of  Ohio,  ISol.     8  Ohio  St.  131.) 

Bartley,  C.  j.8  *  *  *  Xhe  court  was  asked  to  instruct  the 
jury  that,  to  convict  under  this  indictment,  it  must  be  proven  that  the 
offense  was  committed  in  Marion  county,  and  that,  if  the  accused  gave 
the  poison  into  the  hands  of  the  deceased  in  Shelby  county,  and  she 
did  not  swallow  it  there,  but  carried  it  with  her  into  Marion  county, 
and  there  swallowed  it,  and  became  poisoned,  the  crime  was  commit- 
ted, if  committed  at  all,  in  Shelby,  and  not  in  Marion,  county.  The 
court  refused  to  give  this  instruction,  as  asked,  but  did  charge  the 
jury  that,  before  finding  a  verdict  of  guilty,  they  must  be  satisfied, 

0  Accord:  State  v.  Hall,  114  N.  C.  909,  19  S.  E.  602,  28  L.  R.  A.  59.  41 
Am.  St.  Rep.  822  (1S94),  where  the  court  refused  jurisdiction  of  defeudant, 
who,   standing  in  North  Carolina,   shot  a  person   in  Tennessee. 

There  being  no  common  law  of  the  United  States  as  to  crimes  (see  U.  S. 
r.  Coolidge,  1  Wheat.  415,  4  L.  Ed.  124  [ISIG] ;  U.  S.  v.  Worrall,  2  Dall.  3S4, 
1  L.  Ed.  426  [17981),  the  federal  courts  have  no  Jurisdiction  to  [ninish  an  act, 
unless  such  act  is  made  a  crime  by  the  Constitution  or  by  act  of  Couc;resa 
Congress  has  from  time  to  time,  under  the  power  given  it  by  the  Constitution 
to  create,  define,  and  punish  offenses  whenever  they  shall  deem  it  necessary 
for  effectuating  the  objects  of  the  government,  enacted  statutes  punishing 
crimes  against  the  United  States  and  providing  for  the  proper  venue.  If 
such  statutes  do  not  expressly  or  by  implication  make  the  crime  exclusively 
cognizable  in  a  federal  court,  and  the  same  criminal  act  is  also  punishable 
by  the  laws  of  the  state,  the  state  in  which  the  act  was  done  has  concurrent 
jurisdiction  over  the  offense.  Moore  v.  Illinois,  14  How.  13,  14  L.  Ed.  30G 
(1843). 

See,  for  jurisdiction  of  the  United  States  Court  for  China,  Biddle  T. 
United  States,  156  Fed.  759,  &4  C.  C.  A.  415  (1907). 

Const,  art.  1,  §  8,  cl.  17,  gives  the  right  of  exclusive  legislation  to  the 
United  States,  to  exercise  authority  over  all  places  purchased  by  the  consent 
of  the  Legislature  of  the  state  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dockyards,  and  other  needful  buildings.  The  fed- 
eral courts  have,  therefore,  exclusive  jurisdiction  over  all  crimes  committed 
In  siirh  places,  so  purchased.  In  the  absence  of  an  express  reservation  of 
jnrisdif-tion  by  the  state  Legislature  (United  States  v.  Cornell,  2  Mason,  60, 
Fed.  Cas.  No.  14.867  [1819]),  or  In  lands  ceded  by  a  state  to  the  United  States 
without  reservation  of  jurisdiction  (United  States  v.  Carter  [C.  C]  84  Fed.  622 
[1S;»71).  But  the  purchase  of  such  lands,  without  the  consent  of  the  state 
In  whose  territoi-y  they  are,  does  not  give  the  federal  court  jurisdiction  over 
crimes  comiqitted  in  such  lands.  United  States  v.  Rcnn  (C.  C.)  48  Fed,  669 
<18S0).     And  see  In  re  O'Connor,  37  Wis.  370,  19  Am.  Hep.  765  (1S75J. 

•  Tart  of  this  case  is  omitted. 


Ch.  1)  JURISDICTION   AND    VENUE  5 

from  the  proof,  that  the  accused  committed  the  act  in  Marion  county, 
but  that  it  was  not  necessary  that  they  should  find  that  he  had  been  in 
Marion  county,  or  had  given  the  poison  into  the  hands  of  the  deceased 
in  that  county.  It  would  be  sufficient,  to  justify  a  conviction,  if  they 
found  that  the  accused  had  furnished  the  poison  to  Nancy  Holly  in 
Shelby  county,  and  that,  before  swallowing  it,  she  had  taken  it  with  her 
and  went  into  the  county  of  Marion,  and  there  swallowed  the  poison 
and  died.     *     *     * 

It  is  insisted  that  the  accused  had  not  been  in  Marion  county,  and 
that  a  person  could  not  commit  a  crime  in  a  county  in  w^hich  he  had 
not  been.  Ordinarily  this  would  be  true,  but  it  is  not  necessarily  so. 
A  person  may  commit  a  criminal  act  in  a  county,  although  he  has  never 
stepped  a  foot  within  its  limits.  If  a  person  in  Morrow  county,  near 
the  line  of  Marion  county,  should,  by  firing  a  gun  or  hurling  a  bludg- 
eon across  the  county  line,  unlawfully  kill  a  person  in  Marion  county, 
he  might  be  guilty  of  a  crime,  and  be  amenable  to  a  prosecution  in  the 
latter  county,  although  he  had  never  been  within  its  limits. 

There  does  not  appear,  therefore,  to  have  been  any  error  in  the 
charge  of  the  court  on  this  point. 


HASKINS  V.  PEOPLE. 
(Court  of  Appeals  of  New  York,  1857.    IG  N.  Y.  344.) 

The  prisoner  was  indicted,  with  four  other  persons,  for  grand  lar- 
ceny ;  the  property  alleged  to  have  been  stolen  being  money  and  bank 
notes,  the  property  of  David  I.  Shaw. 

Denio,  C.  j,7  *  *  *  As  tj^g  stolen  money  was  brought  by  the 
thieves  into  the  county  of  Onondaga,  the  prisoner  was  legally  indicted 
in  that  county.  This  has  been  the  settled  law  from  an  early  period. 
3  Inst.  113;  1  Hale's  P.  C.  507;  People. v.  Gardner,  2  Johns.  477. 
Even  if  the  original  taking  had  been  in  another  state  or  country,  and 
the  felon  had  brought  the  stolen  property  into  this  state,  h^  could  now 
be  indicted  in  any  county  into  or  through  which  he  carried  it.  2  Rev. 
St.  698,  §  4;  People  v.  Burke,  11  Wend.  129.  No  distinction  arises 
out  of  the  fact  that  a  burglary  was  committed  where  the  property 
was  stolen,  in  Cayuga  county.  Burglary,  when  accompanied  with 
larceny,  is  a  compound  offense.  Under  a  count  for  the  burglary  the 
prisoner  may  be  convicted  of  a  simple  larceny.  At  the  common  law 
the  burglary  could  only  have  been  prosecuted  in  the  county  where  it 
was  committed ;  but  when  accompanied  with  larceny  the  latter  could 
be  prosecuted  in  any  county  into  which  the  prisoner  took  the  stolen 
property.  _  The  same  is  true  of  robbery  or  other  compound  offenses. 

Tlie  principle  is  well  illustrated  in  the  following  passage  from 
Hale:    "A.  robs  B.  on  the  highway,  in  the  county  of  C,  of  goods  of 

7  Part  of  this  case  is  omitted. 


6  JURISDICTION   AND    VENUE  (Ch.  1 

only  the  value  of  twelve  pence,  and  carries  them  into  the  county  of 
D.  It  is  certain  that  this  is  larceny  in  the  county  of  D.,  as  well  as 
in  the  county  of  C ;  but  it  is  only  robbery  in  the  county  of  C,  where 
the  first  taking  was,  and  for  robbery  he  cannot  be  indicted  or  appre- 
hended in  the  county  of  D.,  but  only  in  the  county  of  C.  But  he  may  be 
indicted  of  larceny  in  the  county  of  D.,  though  the  robbery  were  but 
of  the  value  of  one  penny;  yet  if  A.  wereMndicted  thereof  in  the 
county  of  C,  he  should  have  had  judgment  of  death  and  been  excluded 
from  clergy."  1  Hale's  P.  C.  536.  In  these  cases  the  indictment 
takes  no  notice  of  the  county  where  the  first  taking  was,  the  theory 
being  that  the  legal  possession  of  the  goods  remains  in  the  true  owner, 
and  every  moment's  continuation  of  the  trespass  and  felony  amounts 
to  a  new  caption  and  asportation.  1  Russ.  on  Crimes,  173;  2  Hale, 
163;  1  Hawk.  P.  C.  c.  33,  §  52 ;  4  Bl.  Com.  304;  2  East,  P.  C.  771, 
c.  16,  §  156.  The  idea  that,  in  cases  of  this  description,  the  crime  is 
considered  as  actually  committed  in  the  county  where  the  offender  is 
found  with  the  goods,  is  very  distinctly  carried  out  in  the  case  of  Rex 
v.  Parker,  1  Russ.  174.  An  indictment  was  found  in  Hertfordshire 
for  stealing  four  live  tame  turkeys,  and  it  appeared  that  they  were 
stolen  alive  in  Cambridgeshire,  killed  there,  and  carried  dead  into 
Hertfordshire;  and,  upon  the  point  being  heard,  the  judges  held  that, 
though  the  carrying  into  Hertfordshire  constituted  a  larceny,  yet  it 
was  a  new  larceny  there,  and  a  larceny  of  dead  turkeys,  and  not  of 
live  ones. 

It  was  unnecessary,  and  I  think  it  would  have  been  erroneous,  to 
have  set  out  in  the  indictment  the  offense  in  Cayuga  county.  The 
courts  in  Onondaga  county  had  no  jurisdiction  of  that  transaction,  as 
a  distinct  offense.  It  was  simply  matter  of  evidence,  to  characterize 
what  was  done  in  Onondaga,  and  to  show  the  quality  of  that  act. 

The  prisoner  might,  under  the  statute,  have  been  indicted  in  Onon- 
daga for  the  burglary  committed  in  Cayuga.  2  Rev.  St.  727,  §  50.  In 
such  a  case,  I  think  the  indictment  must  have  been  special.  The  bur- 
glarious entry  could  not  have  been  charged  to  have  been  made  in  Onon- 
daga without  a  variance;  and  if  it  had  stated  it  to  have  been  made  in 
Cayuga,  according  to  the  fact,  without  a  statement  that  the  property 
had  been  brought  into  Onondaga,  it  would  have  appeared  that  the 
courts  of  the  latter  county  had  no  jurisdiction  to  try  the  offense. 

The  difference  between  the  two  cases  is  this :  Burglaries  'may  be 
tried  out  of  their  proper  counties  in  certain  special  cases ;  that  is, 
where  the  goods  burglariously  taken  are  carried  into  another  county 
by  the  offenders.  But  this  is  by  positive  law,  and  not  because  the 
burglary  was  actually  committed  in  the  county  where  the  indictment 
is  found,  or  in  judgment  of  law  is  considered  to  have  been  committed 
there.  The  fact  must  therefore  be  set  out  which  brings  the  case  within 
the  statute ;  but  in  the  case  of  an  indictment  for  a  simple  larceny, 
found  in  a  county  into  which  the  thief  has  carried  the  property  stolen 
in  another  county,  the  law  adjudges  that  the  offense  was  in  truth  com- 


Ch.  1)  JURISDICTION   AND    VENUE  * 

mitted  there,  and  hence  there  is  no  occasion  for  a  statement  in  the 
pleading-  of  what  occurred  in  the  other  county.     *     *     * 
Judgment  affirmed.* 


REGINA  V.  ROGERS. 

(Court  of  Criminal  Appeal,  1S77.     14  Cox,  Cr.  Cas.  22.) 

Case  stated  for  the  opinion  of  this  court  by  the  assistant  judge  of 
the  Middlesex  sessions. 

At  a  general  sessions  of  the  peace  for  the  county  of  Middlesex  held 
at  the  Guildhall,  Westminster,  on  the  7th  day  of  June,  1877,  the  pris- 
oner was  tried  on  an  indictment  which  charged  him  with  having,  when 
he  was  employed  in  the  capacity  of  clerk  or  servant  to  Middleton 
Chapman  and  another,  embezzled  the  sum  of  ilO.  17s.  6d.  received 
by  him  on  their  account.^     >:=     *     * 

Field,  J.  I  also  am  of  opinion  that  this  conviction  should  be  af- 
firmed, and  I  have  come  to  this  conclusion  on  the  ground  that  a  ma- 
terial part  of  the  offense  was  committed  in  the  county  of  Middlesex. 
It  was  not  the  duty  of  the  prisoner  to  remit  the  specific  money  which 
he  had  received,  but  it  was  his  duty  to  remit  that  money  or  its  equiva- 
lent at  once  to  his  employers ;  i.  e.,  in  the  course  of  the  week  in  which 
he  received  it.  On  the  18th  day  of  April  the  prisoner  received  the 
money  in  question  at  York,  and  on  the  19th  and  20th  the  prisoner  was 
at  Hull,  and  wrote  letters  to  his  employers  in  London,  saying  nothing 
about  the  receipt  of  the  money  at  York.  Again  on  the  21st,  when 
at  Doncaster,  he  wrote  a  letter  to  his  employers  in  London ;  and,  in 
answer  to  a  question  left  to  them,  the  jury  say  that  the  prisoner  in- 
tended that  the  prosecutors  should  understand  from  the  statements  in 
that  letter  that  he  had  not  then  received  the  amount  in  question,  and 
the  prisoner  had  thus  in  effect  rendered  a  willfully  false  account. 
Upon  these  facts  the  question  arises  whether  any  material  part  of 
this  oft'ense  was  committed  in  the  county  of   Middlesex? 

Starting  with  this,  that  the  law  presumes  every  man  to  be  innocent 
till  he  is  proved  to  be  guilty,  I  am  at  a  loss  to  find  any  evidence  of 
the  coinplete  offense  of  embezzlement  in  Yorkshire,  except  the  writing 
and  posting  there  of  the  letters  addressed  to  the  prisoner's  employers 
in  Middlesex.  On  the  authority  of  Evans  v.  Nicholson,  45  L.  J.  C.  P. 
Ill,  note  4,  which  decided  that  a  letter,  in  which  ^the  defendant  ad- 
mitted a  debt  and  promised  to  pay  it,  addressed  to  and  received  by 
the  plaintiff  in  the  city  of  London,  was  evidence  of  an  account  stated 

8  In  state  v.  McGraw,  87  Mo.  161  (1SS5),  it  was  held  that  a  law  was  un- 
constitutional which  authorized  a  prosecution  for  burglary  in  a  county  other 
than  that  in  which  the  burglary  was  committed,  into  wliicli  the  goods  ac- 
quired by  the  burglary  were  taken. 

»  Part  of  this  case  is  omitted. 


8  JURISDICTION   AND    VENUE  (Ch.  1 

in  the  city  of  London,  I  think  that  the  letter  of  the  21st  day  of  April, 
addressed  to  and  received  by  the  prosecutors,  and  intended  to  act 
on  their  minds,  in  Aliddlesex,  was  in  effect  an  act  done  by  the  prisoner 
in  Middlesex.  The  case  to  my  mind  is  the  same  as  if  a  man  standing 
in  one  county  with  a  long  spear  or  a  pistol  kills  or  injures  a  man  in 
the  adjoining  county,  or  as  if  a  man  with  one  leg  in  one  county  and 
one  in  another  does  a  criminal  act.  So  as  to  a  letter  posted  in  one 
county  and  received  in  another.  There  may  have  been  evidence  on 
which  the  prisoner  might  have  been  properly  convicted  in  Yorkshire ; 
but  I  am  clearly  of  opinion  that  there  was  evidence  which  justified 
his  conviction  in  Middlesex. 

In  Rex  V.  Burdett,  4  B.  &  Aid.  95,  which  has  been  followed  uni- 
versally, the  libel  was  contained  in  a  letter  written  in  county  L.,  but 
received  in  county  M.,  and  it  was  held  that  the  defendant  might  be 
indicted  in  either  county.  The  case  of  Rex  v.  Taylor,  3  Bos.  &  Pul. 
596,  also  makes  the  matter  very  plain.  In  that  case  the  prosecutor's 
servant  received  10s.  for  him  in  the  county  of  Surrey,  after  which  the 
same  evening  he  returned  to  his  master,  in  the  county  of  Middlesex, 
who  asked  him  if  he  had  brought  the  money,  and  the  prisoner  said  he 
had  not,  and  that  it  had  not  been  paid  to  him ;  and  it  was  held  that  he 
was  properly  indicted  in  the  county  of  Middlesex.  Lord  Alvanley, 
C.  J.,  said :  "The  receipt  of  the  money  was  perfectly  legal,  and  there 
was  no  evidence  that  he  ever  came  to  the  determination  of  appropriat- 
ing the  money  to  his  own  use  until  after  he  had  returned  into  the 
county  of  Middlesex.  It  was  not  proved  that  the  money  was  ever  em- 
bezzled until  the  prisoner  was  in  the  county  of  Middlesex.  *  *  * 
In  such  a  case  as  this,  even  if  there  had  been  evidence  of  the  prisoner 
having  spent  the  money  in  Surrey,  it  would  not  necessarily  confine 
the  trial  of  the  offense  to  the  county  of  Surrey.  But  here  there  is  no 
evidence  of  any  act  to  bring  the  prisoner  within  the  statute  until  he 
was  called  upon  by  his  master  to  account." 

The  act  of  nonaccounting  is  a  continuing  act,  and  extended  in  the 
present  case  to  the  time  of  the  receipt  of  the  prisoner's  letter  of  the 
21st  day  of  April  in  the  county  of  Middlesex.  That  was  the  first 
act  from  which  it  is  possible  to  say  with  certainty  that  the  prisoner 
intended  to  embezzle  the  money.  Maule,  J.,  put  the  matter  in  much 
the  same  way  in  Reg.  v.  Murdock  [5  Cox,  Cr.  Cas.  3G2]  :  "It  ap- 
pears to  me  that  there  was  evidence  to  go  to  the  jury  that  the  offense 
was  committed  when  the  prisoner  met  his  master  in  Nottingham,  and, 
being  asked  by  him  for  the  money,  did  not  pay  over  the  amount." 
I  think,  therefore,  that  the  conviction  should  be  affirmed. 

Conviction  affirmed.'" 

10  Kelly,  C.  B.,  and  Liiulley  and  ^Manisty,  J  J.,  delivered  concurring  opinions, 
and  Huddleston,  B.,  a  di^^.sellting   opinion. 

By  statute  in  some  states  enibO/cxlemont  Is  indictable  In  any  county  into 
whicli  tlie  accused  carries  the  property.  See  Pon.  Code  Cal.,  >§  7S0;  People  v. 
Garcia,  25  Cal.  531  (ISCA) ;  Brown  v.  State,  23  Tex.  App.  214,  4  S.  W.  5S8 
(1887) ;   Code  Cr.  Proc.  Tex.,  art.  210. 

At  common  law  the  receiver  of  stolen  goods  can  be  prosecuted  only  in  the 


Ch.  1)  JURISDICTION   AND    VENUE  9 

If  a  man  were  accessory  before  or  after  the  fact  in  another  county 
than  where  the  principal  felony  was  committed,  at  common  law  it 
was  dispunishable,  but  now  by  the  statute  of  2  &  3  Edw.  VI.,  c.  24, 
the  accessory  is  indictable  in  that  county  where  he  was  an  accessory, 
and  shall  be  tried  there,  as  if  the  felony  had  been  committed  in  the 
same  county. 

1  Hale,  P.  C  623. 

county  where  the  goods  were  first  received  as  stolen  goods.  Roach  v.  State, 
5  C-old.  (Tenn.)  39  (1S67). 

By  statute  in  England,  and  In  some  states,  the  receiver  of  stolen  goods 
may  be  prosecuted  either  in  the  county  in  which  he  first  received  the  g^oods 
or  in  any  county  in  which  he  at  any  time  thereafter  had  them.  2  Russ. 
Cr.  238.  See  V/ills  v.  People,  3  Parker,  Cr.  R.  (N.  Y.)  473  (1S57) ;  Moseley 
V.  State,  36  Tex.  Cr,  R,  57S,  37  S.  W.  736,  38  S.  W.  197  (1S9<5).  In  the  absence 
of  a  statute,  the  offense  of  obtaining  goods  by  false  pretense  can  be  prosecuted 
only  in  the  county  where  the  goods  were  first  obtained,  not  in  the  county 
where  the  false  pretense  was  made  (Connor  v.  State,  29  Fla.  455,  10  South. 
891,  30  Am.  St.  Rep.  126  [1S92] ;  Rex  v.  Buttery,  cited  in  Reg.  v.  Ellis,  [1899] 
1  Q.  B.  235) ;  nor  in  a  county  into  which  the  goods  are  afterwards  carried 
(Reg.  V.  Stanbury,  9  Cox,  C.  C.  94  [1862]). 

The  proper  venue  in  forgery  is  the  county  where  the  act  of  making  or 
altering  the  instrument  was  done.  Commonwealth'  v.  Parmenter,  5  Pick. 
(Mass.)  279  (1827).  And  in  uttering  a  forged  instrument,  the  county  In 
which  the  instrument  was  uttered.  People  v.  Rathbun,  21  Wend.  (N.  Y.)  509 
(1S39).  Where  the  forged  instrument  is  sent  by  mail  from  the  county  where 
it  was  forged  to  another  county  where  it  is  used  to  defraud,  the  weight  of 
authority  is  that  the  proper  venue  of  the  uttering  is  the  latter  county,  in 
the  absence  of  a  statute  to  the  contrary  (People  v.  Rathbun,  21  Wend.  [N.  Y.] 
509  [1839] ;  State  v.  Hudson,  13  Mont.  112,  32  Pac.  413,  19  L.  R.  A.  775  [1893]), 
though  some  authorities  are  to  the  effect  that  the  offense  may  be  tried  in  the 
county  where  the  letter  was  mailed  (Perkin's  Case,  2  Lewin,  1.50  [1826]). 

For  the  venue  in  libel  at  common  law  and  under  statutes,  see  Common- 
wealth V.  Blanding,  3  Pick.  (Mass.)  304,  15  Am.  Dec.  214  (1825);  Rex  v. 
Burdett,  4  B.  &  Aid.  95  (1820) ;  U.  S.  v.  Smith  (D.  C.)  173  Fed.  227  (1909). 
In  bigamy:  People  v.  Mosher,  2  Parker,  Cr.  R.  (N.  Y.)  195  (185.5);  Houser 
v.  People,  46  Barb,  (N.  Y.)  33  (1866) ;  State  v.  Hughes,  58  Iowa,  165,  11  N.  W. 
706  (1SS2) ;  State  v.  Smiley,  98  Mo.  605,  12  S.  W.  247  (1889).  In  attempts: 
Griffin  v.  State,  26  Ga.  493  (1858).  Cf.  State  v.  Terry,  109  Mo.  601,  19  S.  W. 
200  (1891).     Robbery:    Sweat  v.  State,  90  Ga.  315,  17  S.  E.  273  (1892). 

By  St.  7  Geo.  IV,  c.  &4,  §  12  (1826),  it  is  provided  that,  where  any  felony  or 
misdemeanor  shall  be  begun  in  one  county  and  completed  in  another,  it 
may  be  dealt  with  in  any  of  the  said  counties  in  the  same  manner  as  if  it  had 
been  actually  and  wholly  committed  therein.  Similar  statutes  have  been 
enacted  in  the  United  States.  See  Connor  v.  State.  29  Fla.  455,  10  South. 
891,  30  Am.  St.  Rep.  126  (1892).  Section  134  of  the  Code  of  Criminal  Pro- 
cedure of  New  York  provides:  "When  a  crime  is  committed,  partly  in  one 
county  and  partly  in  another,  or  the  acts  or  effects  thereof,  constituting  or 
requisite  to  the  consummation  of  the  offense,  occur  in  two  or  more  counties, 
the  jurisdiction  is  in  either  county."  See  People  v.  Mitchell,  49  App.  Div.  531, 
63  N.  Y.  Supp.  522  (1900).     AfBrmed  in  168  N.  Y.  604,  61  N.  E.  182  (1901). 

The  Constitution  of  the  United  States  provides  as  to  crimes  against  the 
United  States:  "The  trial  of  all  crimes  *  *  *  shall  be  held  in  the  state 
where  the  said  crimes  shall  have  been  committed ;  but  when  not  committed 
within  any  state,  the  trial  shall  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed."     Article  3,  §  2,  cl.  3. 

"Where  a  county  is  divided,  a  criminal  act  done  before  the  division  is  to 
be  prosecuted  in  the  particular  new  county  in  which  is  the  place  of  the  of- 
fense."    White,  P.  X,  in  Hernandez  v.  State,  19  Tex.  App.  408  (18S5). 


10  JURISDICTION  AND    VENUB  (Ch.  1 

CARLISLE  V.  STATE. 

(Court  of  Criminal  Appeals  of  Texas,  1893.    31  Tex.  Cr.  R.  537,  21  S.  W.  358.) 

Hurt,  P.  T-^^  *  *  *  In  the  city  of  Denison,  Grayson  county, 
between  the  hours  of  1  and  2  o'clock  a.  m.  on  the  night  of  the  28th 
of  April,  1892,  while  lying  in  bed  with  his  wife  and  infant  child,  W. 
T.  Sharnian  was  shot  with  a  shotgun  by  some  person  standing  upon  a 
ladder  placed  against  the  house,  shooting  over  the  top  of  the  window 
sash,  which  had  been  lowered  about  six  inches.  Charles  Luttrell  was 
indicted  as  principal,  tried,  and  convicted  of  murder  of  the  first  de- 
gree with  the  death  penalty,  appealed  to  this  court,  and  the  judgment 
was  affirmed.  On  May  25,  1892,  John  T,  Carlisle  was  indicted,  being 
charged  as  an  accomplice,  also,  for  the  murder  of  W.  T.  Sharman, 
was  on  the  28th  of  October,  1892,  tried  and  convicted  of  murder  in  the 
first  degree,  with  the  death  penalty  assessed  against  him  also.  From 
this  conviction  and  judgment  he  appeals. 

The  acts  constituting  appellant  an  accomplice  occurring  in  Collin 
county,  counsel  for  appellant  contends  that  Grayson  county,  the  coun- 
ty of  the  homicide,  was  without  authority  to  try  the  case.  If  an  ac- 
complice to  a  felony  be  guilty  of  a  distinct  offense  from  the  felony 
committed  by  his  principal,  the  position  of  counsel  is  well  taken.  We 
have  no  definition  of  a  crime  named  or  called  "accomplice,"  but  we 
are  informed  by  our  Code  what  acts  and  things  will  make  a  person 
doing  them  an  accomplice  to  all  felonies  to  which  there  can  be  an 
accomplice.  We  are  aware  that  there  are  numerous  opinions  of  learn- 
ed courts  strongly  intimating  that  an  accessory  before  the  fact  (our 
accomplice)  is  guilty  of  a  distinct  offense  from  that  of  his  principal. 
We  desire  to  notice  the  reason  or  legal  ratiocination  of  these  opinions. 

The  following  proposition  is  supported  by  a  strong  line  of  authori- 
ties: Accessory  before  the  fact  in  one  state,  to  crime  committed  in 
another,  cannot  be  punished  in  the  state  where  the  substantive  crime 
is  committed.  The  reasoning  by  which  this  proposition  is  sustained 
is  that,  as  the  acts  constituting  a  person  an  accessory  occurred  in  a 
state  other  than  that  in  which  the  principal  committed  the  crime,  the 
state  of  the  substantive  crime  cannot  punish  those  acts  or  the  perpe- 
trators, because  done  beyond  the  jurisdiction  of  the  state  in  which  the 
crime  is  committed  by  the  principal.  Let  us  examine  this  subject,  in 
the  light  of  the  same  authorities  which  support  the  above  proposition, 
a  little  further. 

A.  lives  in  Texas.  He  procures  B.,  who  also  lives  in  Texas,  to  go 
to  Missouri,  and  there  commit  an  act  which  is  a  felony  in  Missouri. 
B.  is  innocent  of  anything  wrong  in  what  he  does.  These  same  au- 
thorities hold  that  Missouri  would  have  authority  to  try  and  punish 
A.  Upon  what  ground?  Because  A.  would  be  the  principal.  Again, 
A.  employs  B.  to  go  to  Missouri,  and  there  commit  a  misdemeanor. 

11  Part  of  this  case  Is  omitted. 


Ch.  1)  JURISDICTION   AND    VENUB  11 

B.,  with  full  knowledge  of  the  criminal  intent  of  A.,  would  be  guilty 
as  a  principal ;  and,  as  it  was  a  misdemeanor,  all  would  be  principals, 
and  Missouri  would  have  authority  to  punish  A.  when  in  fact  A.  had 
done  no  act  whatever  in  Missouri,  except  through  B.  Again,  A. 
sends  B.  to  Missouri  armed  and  equipped  for  the  purpose  of  murder- 
ing C,  being  instigated  thereto  by  A.  Missouri  would  not  have  au- 
thority to  try  and  punish  A.,  because  all  of  his  acts  were  done  in  Tex- 
as, and  because  he  was  accessory  and  not  principal.  Now  for  the 
dilemma.  Suppose  Missouri  should  by  statute  make  accessories  before 
the  fact  principals,  as  several  states  have  done,  then  she  would  have 
authority  to  try  and  punish  A.  for  the  murder  of  C.  when  A.  had  done 
no  act  in  Missouri  personally,  acting  alone  through  his  guilty  agent,  B. 

What  is  the  result  of  such  doctrine?  It  is  that  the  power  or  au- 
thority to  punish  acts  committed  beyond  the  border  of  the  state,  which 
are  crimes  within  the  state,  depends  upon  technical  distinctions  between 
felonies  and  misdemeanors,  accessories  and  principals,  or  whether 
the  agent  was  guilty  or  innocent,  and  not  upon  the  fact  that  the  crim- 
inal act  was  or  was  not  committed  in  the  state. 

There  is  another  line  of  authorities  resting  upon  solid  foundation. 
The  doctrine  is  this:  That  distinctions  between  accessories  and  prin- 
cipals rest  solely  in  authority,  being  without  foundation  either  in 
natural  reason  or  the  ordinary  doctrine  of  law;  for  the  general  rule 
of  law  is  that  what  one  does  through  another's  agency  is  to  be  re- 
garded as  done  by  himself.  In  this  state  there  is  no  distinction  be- 
tween the  punishment  of  an  accomplice  and  a  principal.  Why?  Be- 
cause the  crime  is  the  same.  In  morals  there  are  circumstances  in 
which  we  attach  more  blame  to  the  accomplice  than  to  his  principal ; 
as,  when  a  husband  commands  his  wife,  or  master  his  servant,  to  do 
for  his  benefit  a  criminal  thing,  which  in  his  absence  is  done  reluctant- 
ly, through  fear  or  affection  overpowering  a  subject  mind.  That  the 
crime  committed  by  the  accomplice  is  the  same  as  committed  by  his 
principal  is  evident.  This  proposition  rests  upon  solid  legal  ground. 
In  1  Broom.  Leg.  Max.  (2d  Ed.)  643,  we  find  this  maxim:  "The  prin- 
ciple of  common  law,  'qui  facit  per  ahum,  facit  per  se,'  is  of  universal 
application  both  in  criminal  and  civil  cases." 

If  ?ippellant  be  guilty,  of  what  offense  is  he  guilty?  He  is  guilty 
of  murder  of  the  first  degree.  Why  is  he  guilty  of  murder  of  the 
first  degree?  Simply  because  he,  with  his  malice  aforethought,  ex- 
pressed through  his  agent  and  tool,  Luttrell,  killed  W.  T.  Sharman. 
He  is  guilty  because  Luttrell's  act  was  his  act;  Luttrell  being  his 
agent.  Appellant  is  guilty  of  the  murder  of  Sharman  in  Grayson 
county,  though  the  acts  constituting  him  an  accomplice  may  have  all 
occurred  in  Collin  county.  Why?  Because,  when  his  agent  Luttrell 
shot  and  killed  Sharman  in  the  city  of  Denison,  Grayson  county,  it 
was  appellant,  also,  who,  through  Luttrell,  shot  and  killed  him  in 
Grayson  county.     *     *     * 

We  are  of  opinion  that  the  offense  of  the  accomplice  and  his  prin- 
cipal is  the  same,  and,  if  at  all,  his  crime  was  murder  of  the  first  de- 


12  JURISDICTION   AxN'D    VENUB  (Ch.  1 

gree  committed  in  Grayson  county,  and  hence  the  venue  of  the  case 
was  in  Grayson  county. 

Some  further  observations  on  this  subject.  We  desire  to  call  at- 
tention to  the  very  wise  remark  of  Judge  Marcy  in  People  v.  Mather, 
4  Wend.  (N.  Y.)  229,  256  (21  Am.  Dec.  122).  He  says:  "Writers 
on  criminal  law  make  some  difference  between  the  offense  of  prin- 
cipal and  accessory,  but  it  is  chiefly  as  to  the  order  and  mode  of 
proceeding  against  them."  By  statute  of  New  York  it  is  provided 
that  all  suits,  informations,  and  indictments  for  any  crime  or  misde- 
meanor, murder  excepted,  should  be  brought  within  three  years  after 
its  commission.  The  word  "murder"  was  held  to  include  as  well  ac- 
cessories before  the  fact  as  principals.  If  an  accomplice  is  guilty  of  a 
distinct  felony  from  that  of  his  principal,  then  a  prosecution  for  being 
an  accomplice  to  murder  is  barred  by  three  years,  for  such  an  offense  is 
not  named  in  the  statute  regulating  limitations. 

The  indictment  is  sufficient,  and  not  obnoxious  to  the  objections 
made  to  it.  The  evidence  complained  of,  under  the  circumstances  of 
this  case,  was  admissible.  The  evidence  amply  supports  the  verdict* 
The  judgment  is  affirmed.    Judges  all  present  and  concurring.^^ 


HEWITT  V.  STATE. 

(Supreme  Court  of  Florida,  IDOl.     43  Fla.  194,  30  South.  795.) 

Mabry,  J.^^  In  October,  1898,  plaintiffs  in  error,  Dick  Hewitt  and 
Lum  Hewitt,  were  indicted  in  Bradford  county  for  the  murder  of  J. 
T.  Johnson,  and  plaintiff  in  error.  Moss  Hewitt,  and  one  Minnie  Hew- 
itt, were  jointly  indicted  with  them  as  accessories  before,  the  fact 
of  said  murder.  Upon  a  trial  of  the  case  in  Bradford  county  in  Janu- 
ary, 1899,  the  jury  acquitted  Minnie  Hewutt  and  disagreed  as  to  the 

12  See,  also.  People  v.  Wiley,  65  Hun.  62-1,  20  N.  Y.  Supp.  445  (1S92).  But 
see  People  v.  Hodges,  27  Cal.  340  (ISGo) ;  Commonwealth  v.  Pettes,  114 
Mass.  307  (1S73). 

"The  offense  is  compounded  of  the  connivance  of  the  accessory  and  the 
actual  killing  by  the  principal  felon,  and  the  crime  of  the  accessory,  though 
inchoate  in  the  act  of  counseling,  hiring,  or  commanding,  is  not  consummate 
until  the  deed  is  actually  done.  The  law  in  such  case  holds  the  accessory 
before  the  fact  to  be  guilty  of  the  murder  itself,  not  as  principal,  it  is  true, 
but  as  accessory  before  the  fact ;  for  it  is  the  doing  of  the  deed,  and  not  the 
counseling,  hiring,  or  commanding,  that  makes  his  crime  complete,  and  it  is 
for  the  murder  that  he  is  indicted,  and  not  for  the  counseling  or  procuring. 
We  hold,  therefore,  that  the  locus  in  quo  of  the  offense  of  an  accessory  before 
the  fact  to  the  crime  of  murder  is  the  county  in  which  the  murder  is  done, 
and  that  the  jurisdiction  is  there.  ♦  »  •  The  crime  of  the  accessory  be- 
fore the  fact  being  only  complete  when  the  murder  is  done,  the  jurisdiction 
for  his  trial  is  where  the  murder  is  done.  This  is  'the  county  in  which  the 
crime  was  committed,  in  the  sense  of  the  Constitution.'"  McWhorter,  J.,  in 
State  V.  Ellison.  49  W.  Va.  74.  SS  S.  E.  r)74  (IDOl). 

In  U.  S.  V.  Ramsay,  Hempst,  481,  Fed.  Cas.  No.  16.115  (1847).  It  was 
held  that,  under  the  act  of  congress  giving  the  circuit  court  jurisdiction  of 
murder,  such  courts  did  not  acquire  jurisdiction  of  the  crime  of  accessory 
to  murder. 

12  Part  of  this  case  is  omitted. 


2h.  1)  JURISDICTION   AND    VENUE  13 

other  defendants.  The  case  came  on  for  trial  at  another  t£nn  of  court 
in  Bradford  county,  held  in  October,  1899,  and  after  the  exhaustion 
of  two  special  venires,  one  for  one  hundred  jurors  and  the  other  for 
twenty-five,  and  the  issuance  of  another  for  thirty  jurors,  the  court 
made  the  following  order,  viz.:  "Came  again  the  defendants,  each  in 
his  own  proper  person  and  attended  by  his  counsel,  whereupon,  it 
appearing  to  the  court  that  a  qualified  jury  cannot  be  obtained  in 
this  county  to  try  said  case,  now,  therefore,  it  is  considered  that  said 
case  be  and  the  same  is  hereby  transferred  and  the  venue  changed  to 
the  circuit  court  of  Duval  county  for  trial."  The  order  further  pro- 
vided for  the  transmission  of  the  necessary  papers  to  Duval  county. 
It  appears  from  a  transcript  of  the  proceedings  in  Bradford  county 
that,  in  addition  to  the  regular  panel  of  jurors  for  the  terms  when 
the  indictment  was  found  and  when  the  mistrial  occurred,  a  special 
venire  of  one  hundred  jurors  was  served  for  the  last-mentioned  term. 
When  the  court  made  the  order  changing  the  venue  on  the  unsuccess- 
ful efi^ort  to  obtain  a  jury,  it  appears  that  defendants  neither  requested 
it  nor  interposed  any  objections  thereto. 

The  case  came  on  for  trial  in  Duval  county  without  any  objection 
on  the  part  of  defendants,  and  thereupon  Dick  Hewitt  and  Lum  Hew- 
itt were  convicted  of  murder  in  the  second  degree,  and  Moss  Hewitt 
was  convicted  of  being  accessory  before  the  fact  of  said  offense. 

From  the  judgment  of  the  court  imposing  the  sentences  of  the  law 
upon  the  defendants,  writ  of  error  has  been  sued  out  by  them,  and 
two  grounds  of  error  are  presented  for  consideration,  viz. :  First,  the 
court  erred  in  changing  the  venue  from  Bradford  county;  second, 
Moss  Hewitt  should  be  discharged  because  under  the  laws  of  Florida 
a  party  cannot  be  convicted  as  being  an  accessory  before  the  fact  to 
murder  in  the  second  degree. 

Our  present  Constitution  (section  11,  Declaration  of  Rights)  de- 
clares that  "in  all  criminal  prosecutions  the  accused  shall  have  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury,  in  the  county 
where  the  crime  was  committed."  This  provision  was  not  contained 
in  the  Constitution  of  1868.  Section  2358,  Revised  Statutes,  provides 
that  "all  criminal  causes  shall  be  tried  in  the  county  where  the  offense 
was  committed,  except  when  otherwise  provided  by  law."  It  is  pro- 
vided in  section  2928,  Revised  Statutes,  that  "the  judge  of  the  circuit 
court  may  order  a  change  of  venue  in  all  criminal  cases,  when  he 
shall  be  satisfied  that  it  is  impracticable  to  get  a  qualified  jury  to  try 
the  same  in  the  county  in  which  the  crime  was  committed,"  and  the 
change  hereby  authorized  may  be  ordered  as  provided  in  section  2929 
"upon  the  application  either  of  the  prosecuting  attorney  or  of  the  de- 
fendant upon  affidavit  setting  forth  the  necessity  for  such  change." 
By  chapter  4394,  laws  1895,  it  is  enacted  "that  whenever  it  shall  be 
made  to  appear  to  the  satisfaction  of  the  presiding  judge  of  any  of 
the  circuit  courts  of  this  state  that  the  venue  of  any  cause,  civil  or 
criminal,  then  pending  in  such  court,  should  for  any  of  the  grounds 


14  JURISDICTION   AND    VENUE  (Ch.  1 

now  prescribed  by  law  be  chang-ed,  it  shall  be  in  the  power  and  dis- 
cretion of  such  judge  to  change  the  venue  of  such  cause,  civil  or  crim- 
inal, as  the  case  may  be,  from  the  circuit  court  of  the  county  where  such 
cause  is  at  the  time  pending  to  the  circuit  court  of  any  other  county 
within  the  same  circuit,  but  said  judge  shall  not  be  compelled  to  trans- 
fer said  cause  to  any  adjoining  county."  Other  provisions  as  to  trans- 
fer of  causes  need  not  be  mentioned. 

The  provision  in  our  Constitution  in  reference  to  the  right  of  trial 
by  an  impartial  jury  in  the  county  where  the  crime  is  committed  is  an 
important  one  to  the  accused.  At  common  law  a  defendant  had  a 
right  to  be  tried  in  the  county  in  which  the  offense  was  alleged  to  have- 
been  committed,  where  he  was  surrounded  by  the  influences  of  a 
good  character  if  he  had  established  one,  and  where  the  witnesses 
were  accessible  for  the  purposes  of  a  trial.  If  an  impartial  trial  could 
not  be  had  in  such  county,  the  practice  was  to  change  the  venue  to 
some  other  county  where  such  trial  could  be  obtained.  The  abuse  of 
the  right  to  change  the  venue  to  the  detriment  of  the  accused  would  be 
serious  to  him,  and  no  doubt  constitutional  provisions  like  ours  were 
designed  to  permanently  secure  this  right  of  trial  by  an  impartial 
jury  in  the  county  where  the  offense  is  alleged  to  have  been  committed. 
Some  courts  have  held  that  the  guaranty  is  not  only  of  an  impartial 
trial,  but  also  a  trial  in  the  county  where  the  offense  was  committed, 
and  that  it  was  not  competent  for  the  Legislature  to  provide  for  a 
transfer  to  another  county  for  any  cause  without  the  consent  of  the 
accused.  Armstrong  v.  State,  1  Cold.  (Tenn.)  337;  Kirk  v.  State,  Id. 
344;  State  v.  Knapp,  40  Kan.  148,  19  Pac.  728.  Where  a  trial  by  an 
impartial  jury  can  be  secured  in  the  county  where  the  crime  is  com- 
mitted the  accused  cannot  be  deprived  of  a  trial  there,  even  under 
sanction  of  legislative  action.  If  he  applied  for  a  change  of  venue  and 
it  be  granted  on  his  request,  it  may  very  properly  be  said  that  he  has 
waived  the  right  and  no  question  can  arise  in  reference  to  it. 

We  do  not  think  it  was  the  purpose  of  the  framers  of  the  Constitu- 
tion to  force  a  trial  in  a  county  where  an  impartial  jury  cannot  be  had, 
as  to  do  so  would  defeat  the  greater  and  more  important  right  of  a 
speedy  and  public  trial  by  an  impartial  jury.  State  v.  Miller,  15  Minn. 
344  (Gil.  277).  Our  statute  is  comprehensive  enough  to  authorize  the 
court  to  direct  a  change  of  venue  when  an  impartial  jury  cannot  be 
secured  in  the  county  where  the  offense  is  alleged  to  have  been  com- 
mitted, and  limiting  it  to  the  impossibility  of  securing  an  impartial 
jury  in  that  county,  we  think  it  is  constitutional.  It  is  not  contended 
in  this  case  that  an  actual  necessity  for  the  change  did  not  exist  when 
the  order  changing  the  venue  was  made.  The  only  point  of  contention 
under  this  head  is  that  the  law  authorizing  the  change  was  unconstitu- 
tional. The  record  clearly  indicates  that  the  trial  court  put  the  question 
of  obtaining  an  impartial  jury  in  Bradford  county  to  actual  test,  and 
in  such  a  case  we  do  not  conceive  that  the  provision  of  our  Constitu- 
tion was  intended  as  a  barrier  against  the  change.     The  act  of  the 


Cll.  1)  JURISDICTION   AND    VENUE  15- 

Legislature  may  and  should  have  effect  in  so  far  as  it  does  not  con- 
flict with  the  Constitution,  and  to  the  extent  of  authorizing  a  change 
under  circumstances  disclosed  in  this  case  we  are  of  opinion  that 
there  is  no  conflict.  Care  should,  however,  always  be  exercised  to 
avoid  any  deprivation  of  the  right  of  the  accused  to  his  constitutional 
mode  of  trial  in  applications  to  change  the  venue  without  his  con- 
sent.    *     *     * 

Finding  no  error  in  the  points  presented,  the  judgment  must  be 
affirmed;    and  it  is  so  ordered.^* 

1*  See,  also.  State  v.  Miller,  15  Minn.  344,  Gil.  277  (1870).     Contra,  State  v. 
Denton,  6  Cold.  (Tenn.)  539  (1869) ;   State  v.  Kindig,  55  Kan.  113,  39  Pae.  1028 

(1895). 

The  matter  of  change  of  venue  for  prejudice  in  the  county  Is  now  generally 
regulated  by  statute.  \Yhether  the  application  for  such  change  shall  be 
granted  is  usually  made  to  rest  in  the  sound  discretion  of  the  judge,  to  whom 
the  application  is  properly  made ;  and  the  exercise  of  that  discretion  will 
not  be  reviewed  on  appeal,  unless  it  has  been  clearly  abused.  Smith  v.  State, 
145  Ind.  176,  42  N.  E.  1019  (1S9G) ;  State  v.  Hawkins,  23  Wash.  289,  63  Pac. 
258  (1900).  For  discretion  of  court,  when  the  application  is  founded  on 
preludice  of  the  judge,  see  State  v.  Hawkins.  23  Wash.  289,  63  Pac.  258 
(1900) ;  State  v.  Thomas,  32  Mo.  App.  159  (18SS) ;  State  v.  Griustead,  10- 
Kan.  App.  78,  61  Pac.  975  (190Oj. 

For  procedure  for  change  of  venue  on  ground  of  disqualification  of  judge, 
see  Kelly  v.  Ferguson,  5  Okl.  Cr.  316,  114  Pac.  631  (1911). 


16  PROSECUTION  (Ch.  2 

CHAPTER  II 
PROSECUTION 


The  next  step  towards  the  punishment  of  offenders  is  their  prose- 
cution, or  the  manner  of  their  formal  accusation.  And  this  is  either 
upon  a  previous  finding  of  the  fact  by  an  inquest  or  grand  jury,  or 
without  such  previous  finding.  The  former  way  is  either  by  present- 
ment or  indictment. 

I.  A  presentment,  generally  taken,  is  a  very  comprehensive  term, 
including  not  only  presentments  properly  so  called,  but  also  inquisi- 
tions of  office  and  indictments  by  a  grand  jury.  A  presentment,  proper- 
ly speaking,  is  the  notice  taken  by  a  grand  jury  of  any  offense  from 
their  own  knowledge  or  observation,  without  any  bill  of  indictment 
laid  before  them  at  the  suit  of  the  king;  as  the  presentment  of  a  nui- 
sance, a  libel,  and  the  like ;  upon  which  the  officer  of  the  court  must 
afterwards  frame  an  indictment  before  the  party  presented  can  be  put 
to  answer  it.  An  inquisition  of  office  is  the  act  of  a  jury  summoned  by 
the  proper  officer  to  inquire  of  matters  relating  to  the  crown  upon 
evidence  laid  before  them.  Some  of  these  are  in  themselves  convic- 
tions, and  cannot  afterward  be  traversed  or  denied;  and  therefore 
the  inquest  or  jury,  ought  to  hear  all  that  can  be  alleged  on  both  sides. 
Of  this  nature  are  all  inquisitions  of  felo  de  se;  of  flight  in  persons 
accused  of  felony ;  of  deodands  and  the  like ;  and  presentments  of 
petty  offenses  in  the  sheriff's  tourn  or  courtleet,  whereupon  the  pre- 
siding officer  may  set  a  fine.  Other  inquisitions  may  be  afterwards 
traversed  and  examined,  as  particularly  the  coroner's  inquisition  of 
the  death  of  a  man  when  it  finds  any  one  guilty  of  homicide;  for 
in  such  cases  the  offender  sa  presented  must  be  arraigned  upon  this 
inquisition  and  may  dispute  the  truth  of  it,  which  brings  it  to  a  kind 
of  indictment,  the  most  usual  and  effectual  means  of  prosecution,  and 
into  which  we  will  therefore  inquire  a  little  more  minutely. 

II.  An  indictment  is  a  written  accusation  of  one  or  more  persons 
of  a  crime  or  misdemeanor,  preferred  to,  and  presented  upon  oath  by, 
a  grand  jury.  To  this  end  the  sheriff  of  every  county  is  bound  to  re- 
turn to  every  session  of  the  peace,  and  every  commission  of  oyer  and 
terminer,  and  of  general  gaol  delivery,  twenty-four  good  and  lawful 
men  of  the  county,  some  out  of  every  hundred,  to  inquire,  present,  do, 
and  execute  all  those  things  which  on  the  part  of  our  lord  the  king 
shall  then  and  there  be  commanded  them. 

The  remaining  methods  of  prosecution  are,  without  any  previous 
finding  by  a  jury,  to  fix  the  authoritative  stamp  of  verisimilitude  upon 
the  accusation.  One  of  these,  by  the  common  law,  was  when  a  thief 
was  taken  with  the  mainor;  that  is,  with  the  thing  stolen  upon  him  in 


Ch.  2)  PROSECUTION  17 

nianu.  For  he  might,  when  so  detected  flagrante  delicto,  be  brought 
into  court,  arraigned  and  tried  without  indictment,  as,  by  the  Danish 
law,  he  might  be  taken  and  hanged  upon  the  spot,  without  accusation 
or  trial.  But  this  proceeding  was  taken  away  by  several  statutes  in 
the  reign  of  Edward  the  Third,  though  in  Scotland  a  similar  process 
remains  to  this  day.  So  that  the  only  species  of  proceeding  at  the 
suit  of  the  king,  without  a  previous  indictment  or  presentment  by  a 
grand  jury,  now  seems  to  be  that  of  information. 

III.  Informations  are  of  two  sorts:  First,  those  which  are  partly 
at  the  suit  of  the  king,  and  partly  at  that  of  a  subject;  and,  secondly, 
such  as  are  only  in  the  name  of  the  king.  The  former  are  usually 
brought  upon  penal  statutes,  which  inflict  a  penalty  upon  conviction 
of  the  offender,  one  part  to  the  use  of  the  king,  and  another  to  the 
use  of  the  informer,  and  are  a  sort  of  qui  tam  actions  (the  nature 
of  which  was  explained  in  a  former  book),  only  carried  on  by  a  crim- 
inal instead  of  a  civil  process,  upon  which  I  shall  therefore  only  ob- 
serve that,  by  the  statute  31  Eliz.  c.  5,  no  prosecution  upon  any  penal 
statute,  the  suit  and  benefit  whereof  are  limited  in  part  to  the  king 
and  in  part  to  the  prosecutor,  can  be  brought  by  any  common  informer 
after  one  year  is  expired  since  the  commission  of  the  offense;  nor 
on  behalf  of  the  crown  after  the  lapse  of  two  years  longer;  nor, 
where  the  forfeiture  is  originally  given  only  to  the  king,  can  such 
prosecution  be  had  after  the  expiration  of  two  years  from  the  com- 
mission of  the  offense. 

The  informations  that  are  exhibited  in  the  name  of  the  king  alone 
are  also  of  two  kinds :  First,  those  which  are  truly  and  properly  his 
own  suits,  and  filed  ex  officio,  by  his  own  immediate  officer,  the  At- 
torney General;  secondly,  those  in  which,  though  the  king  is  the 
nominal  prosecutor,  yet  it  is  at  the  relation  of  some  private  person 
or  common  informer,  and  they  are  filed  by  the  king's  coroner  and  at- 
torney in  the  Court  of  King's  Bench,  usually  called  the  master  of  the 
crown  office,  who  is  for  this  purpose  the  standing  officer  of  the  pub- 
lic. The  objects  of  the  king's  own  prosecutions,  filed  ex  officio  by  his 
own  Attorney  General,  are  properly  such  enormous  misdemeanors  as 
peculiarly  tend  to  disturb  or  endanger  his  government,  or  to  molest 
or  affront  him  in  the  regular  discharge  of  his  royal  functions.  For 
offenses  so  high  and  dangerous,  in  the  punishment  or  prevention  of 
which  a  moment's  delay  would  be  fatal,  the  law  has  given  to  the 
crown  the  power  of  an  immediate  prosecution,  without  waiting  for 
any  previous  application  to  any  other  tribunal,  which  power,  thus 
necessary  not  only  to  the  ease  and  safety  but  even  to  the  very  existence 
of  the  executive  magistrate,  was  originally  reserved  in  the  great  plan 
of  the  English  constitution,  wherein  provision  is  wisely  made  for  the 
due  preservation  of  all  its  parts.  The  objects  of  the  other  species  of 
informations,  filed  by  the  master  of  the  crown  office  upon  the  complaint 
or  relation  of  a  private  subject,  are  any  gross  and  notorious  misde- 
meanors, riots,  batteries,  libels,  and  other  immoralities  of  an  atrocious 
Mik.Cr.Pb.(Abridged  Ed.) — 2 


18  PKOSECUTION  (Ch.  2 

kind,  not  peculiarly  tending  to  disturb  the  government  (for  those  are 
left  to  the  care  of  the  Attorney  General),  but  which,  on  account  of 
their  magnitude  or  pernicious  example,  deserve  the  most  public  animad- 
version. 

4  Black.  Comm.  301  et  seq. 

A  second  sort  of  proceeding  in  cases  capital  without  indictment  is 
where  an  appeal  is  brought  at  the  suit  of  the  party,  and  the  plaintiff 
is  nonsuit  upon  that  appeal,  yet  the  offender  shall  be  arraigned  at  the 
king's  suit  upon  such  appeal. 

2  Hale,  P.  C.  149. 


STATE  V.  ANDERSON. 
(Supreme  Court  of  New  Jersey,  187S.     40  N.  J.  Law.  224.) 

Beasley,  C.  J.^  From  the  facts  agreed  upon,  it  appears  that  there 
are  two  indictments  in  the  county  of  Passaic  against  the  defendant: 
The  one  for  the  sale  of  ardent  spirits  without  license,  and  the  other 
for  keeping  a  disorderly  house,  by  frequently  selling  therein  ardent 
spirits  contrary  to  law.  Both  offenses  were  committed  in  the  city  of 
Paterson,  in  which  city  there  was,  at  the  time  in  question,  an  ordi- 
nance forbidding  the  keeping  of  a  disorderly  house  within  the  city, 
under  a  penalty  of  $25. 

By  the  act  approved  March  2G,  1874  (Rev.  St.  1874,  p.  493),  it  is 
declared  that  the  provisions  of  the  thirty-seventh  section  of  the  act 
concerning  inns  and  taverns,  and  those  of  the  supplements  thereto, 
approved  respectively  March  8,  1848,  and  February  20,  1819,  which 
are  the  clauses  making  it  an  indictable  offense  to  sell  ardent  spirits 
without  license,  shall  not  thereafter  apply  to  offenses  committed  in 
any  of  the  incorporated  cities  of  this  state,  the  ordinances  of  which 
shall  provide  for  the  punishment  of  the  unlicensed  sale  of  spirituous 
liquors,  and  for  the  punishment  of  the  same  on  Sunday.  The  second 
section  of  the  same  statute  enacts  that,  where  the  ordinances  of  such 
cities  provide  for  the  punishment  of  the  offense  of  keeping  a  disorderly 
house,  it  shall  not  thereafter  be  lawful  to  prosecute,  by  indictment,  any 
person  accused  of  keeping  a  disorderly  house  in  such  city,  where  the 
alleged  offense  consists  only  of  the  continuous  or  frequent  violation 
of  the  provisions  of  the  laws  above  mentioned  inhibiting  the  sale  of 
ardent  spirits  by  unqualified  persons.     *     *     * 

Is  the  act  constitutional?  The  keeping  of  a  disorderly  house  is  a 
crime  indictable  at  common  law,  and  in  this  state  it  is  punishable  by 
tine  and  imprisonment  in  the  state  prison.  Therefore  it  is  clear  that  if 
this  offense  can,  for  the  purpose  of  crimination,  trial,  and  punishment, 
be  put  into  the  hands  of  these  municipal  authorities,  it  follows  that  all 

1  Part  of  t'.iis   case  is   oniiltecL 


Ch.  2)  PROSECUTION  19 

common-law  offenses  of  the  same  grade  can  be,  in  like  manner,  so 
deposited.  This,  I  think,  cannot  be  conceded.  Such  an  arrangement 
would,  in  a  very  plain  way,  infringe  an  important  provision  of  the 
Constitution  of  this  state.  Article  1,  §  9,  of  that  instrument  declares 
that  "no  person  shall  be  held  to  answer  for  a  criminal  offense,  unless 
on  the  presentment  or  indictment  of  a  grand  jury,  except  in  cases  of 
impeachment,  or  in  cases  cognizable  by  justices  of  the  peace,"  etc. 
The  purpose  of  this  clause  was  to  prevent  the  bringing  of  any  citizen 
under  the  reproach  of  being  arraigned  for  crime  before  the  public, 
unless,  by  a  previous  examination  taken  in  private,  the  grand  inquest 
had  certified  that  there  existed  some  solid  ground  for  making  the 
charge.  It  took  from  the  law  officer  of  the  state,  the  Attorney  General, 
one  of  the  established  prerogatives  of  his  office — that  of  filing  his 
information  against  supposed  offenders,  and  thus  putting  them  on 
trial  at  his  own  volition.  The  reputation  of  every  man  was  thus  put 
under  the  care  of  a  single  specified  body.  The  language  of  the  consti- 
tutional clause  is  very  comprehensive,  and  the  specified  exceptions 
show  conclusively  that  it  was  intended  to  cover  the  residue  of  the  en- 
tire field  of  criminal  accusation.  In  the  presence  of  such  a  prohibition, 
how  then  is  it  permissible  to  put  a  man  on  trial  before  a  city  court, 
charged  with  this  common-law  offense,  without  the  preliminary  sanc- 
tion of  a  grand  jury?  If  it  be  said  the  punishment  is  only  a  fine,  the 
answer  is :  The  restraining  clause  in  question  has  nothing  to  do  with 
the  result  or  effect  of  the  trial,  its  object  being  to  save  from  the  shame 
of  being  brought  before  the  bar  of  a  criminal  court,  except  in  the 
authorized  method  after  an  antecedent  inquisition.  I  am  clearly  of 
opinion  that  a  trial  of  a  person  for  this  offense  before  the  municipal 
court  would  be  an  act  utterly  void. 

This  conclusion  also  has  led  me  to  the  further  result  that  the  clause 
of  the  statute  in  question  must  be  held  to  be  a  nullity.  The  declara- 
tion that  was  intended  to  prohibit  the  trial  of  the  offense  of  keeping 
a  disorderly  house  by  an  indictment  is  too  dependent  on  the  establish- 
ment of  another  mode  of  trial  and  punishment  to  permit  it  to  stand  as 
an  independent  provision.  The  repeal  of  the  old  method  of  prosecu- 
tion, and  its  substitute,  are  part  of  a  scheme,  and,  as  the  scheme  fails, 
the  entire  section  must  fail.  The  present  indictment  for  this  crime 
is  sustainable. 

With  regard  to  the  other  indictment,  the  questions  involved  are  of 
a  different  character.  The  offense  of  selling  liquor  without  a  license  is 
a  purely  statutory  offense.  Independently  of  a  prohibition  by  the  Leg- 
islature, such  a  sale  is  neither  immoral  nor  illegal,  and  the  lawmaker, 
therefore,  can  put  it  under  such  control  as  may  be  thought  best.  Not 
being  in  its  nature  an  indictable  offense,  it  can  be  made  punishable  by 
a  penalty,  without  indictment.  Such  is  the  effect  of  the  present  law  in 
certain  localities,  and  I  can  perceive  nothing  unconstitutional  or  illegal 
in  such  an  arrangement.    This  law,  therefore,  which  gives  the  exclu- 


20  PROSECUTION  (Ch.  2 

sive  right  of  prosecution  and  punishment  to  the  city  of  Paterson  in 
this  case,  is  valid  and  must  be  sustained. 
The  sessions  should  be  advised  accordingly.^ 


STATE  V.  KEL]\r. 

(Supreme  Court  of  Missouri,  1SS3.     79  Mo.  .'15.) 

Phillips,  C  This  is  a  prosecution  for  petit  larceny,  instituted 
in  justice's  court  on  the  affidavit  of  a  private  citizen.  On  a  trial  had 
therein  the  defendant  was  fined  $1.  From  this  judgment  he  appealed 
to  the  circuit  court,  where,  on  a  trial  de  novo,  he  was  again  found 
guilty  and  fined  $10.  Tlie  circuit  court  sustained  a  motion  in  arrest 
of  judgment  for  certain  defects  in  the  proceedings  unnecessary  to 
particularize,  as  our  decision  is  placed  upon  other  grounds  fatal  to  the 
proceeding.    The  state  has  brought  the  case  here  on  appeal. 

Section  12,  art.  2,  of  the  state  Constitution  declares  that  "no  person 
shall,  for  felony,  be  proceeded  against  criminally  otherwise  than  by 
indictment,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in 
the  militia  when  in  actual  service  in  time  of  war  or  public  danger; 
in  all  other  cases  offenses  shall  be  prosecuted  criminally  by  indictment 
or  information  as  concurrent  remedies." 

In  Ex  parte  Slater,  72  Mo.  102,  this  court  held  that  the  word  "in- 
dictment," as  used  in  said  section,  "has  a  well-defined  meaning,  and 
must  be  accepted  and  understood  as  having  been  inserted  in  the  Con- 
stitution with  the  meaning  attached  to  it  at  common  law."  The  court 
then  quoted  from  Bacon's  Abridgment  and  other  common-law  text- 
writers  to  show  what  were  the  qualities  and  incidents  of  an  indictment 
as  employed  in  the  ancient  proceedings. 

This  being  unquestionably  a  correct  construction  of  the  term  "in- 
dictment" as  used  in  the  Constitution,  it  must  follow  that  the  term 
"information,"  as  employed  in  the  same  section,  should  be  subjected 
to  the  same  common-law  meaning.  The  text-books  are  uniform  in 
defining  an  information  to  be  an  accusation  or  complaint  exhibited 
against  a  person  for  some  criminal  offense,  "either  immediately  against 
the  king  or  against  a  private  person,  which,  from  its  enormity  or  dan- 
gerous tendency,  the  public  good  requires  should  be  restrained  and 
punished,  and  differs  principally  from  an  indictment  in  this :  That 
an  indictment  is  an  accusation  found  by  the  oath  of  twelve  men.  where- 
as an  information  is  only  the  allegation  of  the  officer  who  exhibits  it. 
5  Bacon's  Abr.  oo.  167,  170,  172;   Hawk.  P.  C.  26,  §  4. 

2  See,  also,  Natal  v.  Louisiana,  139  U.  S.  G21,  11  Sup.  Ct.  G3G,  35  U  Ed.  2SS 
{1S91). 

"When  the  punishment  will  be  only  an  amercement,  the  presentment  Is 
treated,  not  as  an  accusation,  but  as  testimony,  and  conclusive  testimony. 
We  believe  that  in  Henry  Ill's  day  anything  that  Ave  could  call  a  trial  of 
a  man  upon  an  indictnicnt  for  misdemeanor  was  exceedingly  rare,"  Pollock 
and  Mait.  Hist.  Eng.  Law,  H,  (]49. 

3  Part  of  this  case  is  omitted. 


Ch.  2)  PROSECUTION  21 

The  information  at  common  law  was  uniformly  exhibited  by  the 
Attorney  General  in  certain  cases,  but  at  his  discretion,  except,  per- 
haps, where  directed  by  the  House  of  Lords  or  House  of  Commons, 
or  some  of  the  high  officials,  as  the  lords  of  the  treasury,  etc.  The 
king's  coroner  and  attorney  in  the  Court  of  King's  Bench,  called  the 
crown  officer,  might  file  informations.  This  he  might  do,  and  usually 
did,  at  the  prompting  of  some  private  individual.  But  no  private  citi- 
zen could  beget  a  criminal  prosecution  on  his  mere  affidavit  or  in- 
formation.* 1  Bishop,  Crim.  Proc.  (3d  Ed.)  141,  143;  Jacob's  Law 
Diet,  title  "Information."  Bishop  (section  144)  says:  "In  our  states 
the  criminal  information  should  be  deemed  to  be  such,  and  such  only, 
as  in  England'  is  presented  by  the  Attorney  or  the  Solicitor  General. 
This  part  of  the  English  common  law  has  plainly  become  common  law 
with  us.  And  as  with  us  the  powers,  which  in  England  are  exercised 
by  the  Attorney  General  and  Solicitor  General,  are  largely  distributed 
among  our  district  attorneys,  whose  office  does  not  exist  in  England, 
the  latter  officers  would  seem  to  be  entitled,  under  our  common  law,  to 
prosecute  by  information  as  a  right  adhering  to  their  office,  and  with- 
out leave  of  court."  Wharton  lays  down  the  same  doctrine.  Crim. 
Pr.  and  Pr.  (8th  Ed.)  §  87. 

So  jealous  were  the  English  people,  from  whom  comes  our  com- 
mon-law heritage,  of  their  personal  liberty  and  the  protection  of  due 
process  of  law,  that  they  contended  for  a  time  earnestly  against  the 
summary  proceeding  by  information  as  violative  of  the  Magna  Charta, 
and  threw  around  its  exercise  many  safeguards  against  abuses.  If 
reasons  were  necessary  to  justify  the  conclusion  reached  in  this  opin- 
ion, they  are  numerous  why  no  such  right  should  be  intrusted  to  a 
private  citizen  to  inaugurate  a  proceeding  like  this  upon  his  own 
affidavit.  The  injustice  and  abuse  of  such  process,  left  at  the  caprice, 
spite,  or  malice  of  one  not  under  the  sanction  of  official  duty,  is  ap- 
parent, and  therefore  the  framers  of  the  Constitution  employed  the 
term  "information,"  without  more,  well  understanding  its  common- 
law  import  and  meaning.  And  we  are  not  authorized,  nor  is  the  Legis- 
lature, to  extend  its  meaning  and  use.     *     ♦     * 

The  proceeding  in  question  should  have  been  dismissed ;  but,  as 
the  court  below  arrested  the  judgment,  its  judgment  will  be  affirmed, 
and  tlie  prosecution  dismissed.    All  concur.^ 

4  "Informations  at  common  law  (which  are  very  ancient  in  this  court)  were 
filed  by  the  coroner,  who  did  it  upon  any  application,  as  a  matter  of  course. 
The  statute  of  4  W.  &  M.  c.  18,  was  therefore  made  to  limit  it,  and  other 
grounds  there  are  by  which  the  court  has  limited  itself."  Mansfield,  C.  J., 
in  Rex  v.  Robinson,  1  W.  Black.  541  (17G5). 

5  Accord :    State  v.  Dover,  9  N.  H.  468  (1S3S). 

In  some  jurisdictions  that  permit  prosecution  by  information,  statutes-  re- 
quire that  no  such  information  shall  be  filed  until  the  accused  shall  have 
had  a  preliminary  examination  before  an  examining  magistrate  or  oflicer, 
unless  accused  is  a  fugitive  from  justice  or  waives  the  examination.  See 
Washburn  v.  People,  10  Mich.  372  (1862). 


22  ARREST  (Ch.  3 

CHAPTER  III 
ARREST 


SECTION  1.— WHAT  CONSTITUTES  ARREST 


An  arrest  is  the  apprehending  and  first  restraining-  of  a  man's  per- 
son, depriving  it  of  his  own  will  and  liberty,  and  may  be  called  the 
beginning  of  imprisonment. 

Dalton's  Country  Justice,  c.  118. 


RUSSEN  V.  LUCAS,  Sheriff,  et  al. 
(Court  of  King's  Bench,  1824,     1  Car.  &  P.  153.) 

Action  against  the  sheriff  for  an  escape.  The  only  point  in  dispute 
was  whether  a  person  named  Hamer  was  arrested  by  the  sherift''s  of- 
ficer and  escaped. 

The  officer  having  the  warrant  went  to  the  One  Tun  tavern  in 
Jermyn  street,  where  Hamer  was  /sitting.  He  said,  "Mr.  Hamer,  I 
want  you."  Hamer  replied,  "Wait  for  me  outside  the  door,  and  I  will 
come  to  you."  The  officer  went  out  to  wait,  and  Hamer  went  out  at 
another  door,  and  got  away. 

Abbott,  C.  J.  Mere  words  will  not  constitute  an  arrest;  and  if  the 
officer  says,  "I  arrest  you,"  and  the  party  runs  away,  it  is  no  escape ; 
but  if  the  party  acquiesces  in  the  arrest,  and  goes  with  the  officer,  it 
will  be  a  good  arrest.  If  Hamer  had  gone  even  into  the  passage  with 
the  officer,  the  arrest  would  have  been'  complete ;  but,  on  these  facts, 
if  I  had  been  applied  to  for  an  escape  warrant  I  would  not  have  grant- 
ed it. 

Nonsuit.* 

iSee.  also,   Baldwin  v.   MnriMiy,  S2  Til.  485  (1876). 

In  Grosse  v.  State,  11  Tex.  App.  3G4  (18S2),  the  marshal  who  had  taken  the 
prisoner  in  charge  testifletl  that  he  took  charge  of  the  prisoner  in  his  capaci- 
ty of  marshal,  but  that  he  did  not  consider  tlie  prisoner  under  arrest.  The 
court  said:  "The  question  is  not  so  much  the  intentions  and  opinions  of  the 
marshal  In  regard  to  the  matter,  but  the  actual  situation  of  the  defendant; 
and  he  was  uut  only  in  aelual  but  intentional  arrest." 


Ch.  3)  ARREST  23 

REGINA  V.  NUGENT. 

(Dundalk  Spring  Assizes,  ISGS.     11  Cox,  Cr.  Cas.  G4.) 

The  prisoner  was  indicted  for  that  he,  being  lawfully  in  custody  un- 
der a  warrant  of  the  Lords  Justices  of  Ireland,  unlawfully  did  escape 
out  of  the  said  custody.     *     *     ♦ 

Battersby,  J.  *  *  *  Evidence  was  given  that  two  policemen 
had  gone  up  to  the  prisoner's  house,  and  had  met  him  in  the  yard,  and 
asked  him  to  come  into  the  parlor.  On  going  in,  they  said  the  sub-in- 
spector of  police  wanted  to  see  him.  The  prisoner  asked  what  he 
wanted.  They  said  he  would  tell  him  himself  when  he  came.  He  asked. 
"Am  I  to  consider  myself  under  arrest?"  They  said  he  might. 
They  did  not,  however,  tell  him  there  was  a  warrant  for  his  arrest. 
One  of  the  policemen  then  went  away,  and  the  other  remained  in  the 
room  with  the  prisoner.  The  prisoner  asked  if  he  might  go  into  the 
next  room  for  his  dinner.  The  policemen  said,  "No"  but  that  he 
might  have  his  dinner  brought  in  there.  Shortly  after,  Sub-Inspector 
Gardiner  came  in.  He  held  the  warrant  in  his  hand,  and  said  to  the 
prisoner  that  this  was  a  warrant  for  his  arrest.  He  did  not  read  it, 
nor  touch  the  prisoner.  The  prisoner  said,  "Is  my  name  in  it?"  and 
came  forward,  as  though  to  look  at  the  warrant,  turned  the  key  in  the 
door,  and  leaped  out  of  the  window.  He  was  not  arrested  till  nearly 
one  year  and  a  half  afterwards. 

Sub-Inspector  Gardiner  admitted,  on  cross-examination,  that  the 
movements  of  the  prisoner  and  his  conversation  were  not  of  a  nature 
to  imply  submission  to  the  warrant,  but  merely  a  desire  to  gain  time.- 

Falkiner,  Q.  C.,  for  the  prisoner,  submitted  that  there  was  no  evi- 
dence of  an  arrest.  The  policemen  had  made  no  arrest  in  the  first  in- 
stance. The  prisoner  had  merely  waited  for  the  visit  of  the  sub-in- 
spector at  their  request.  Even  if  the  prisoner  was  under  compulsion, 
it  was  not  a  legal  arrest,  as  the  police  had  not  a  warrant,  nor  did  they 
communicate  its  existence  to  the  prisoner.  On  the  arrival  of  the  war- 
rant there  was  no  arrest,  actual  or  constructive.  After  Gardiner's  ar- 
rival, the  prisoner  was  never  put  under  compulsion,  nor  made  any  sub- 
mission. 

His  Lordship  ruled  that  the  arrest  was  perfect.  The  arrest  by  the 
policemen  was  good,  subject  to  the  production  of  the  warrant  after- 
wards. On  the  arrival  of  Gardiner  with  the  warrant  the  arrest  was 
complete.     *     *     * 

Convicted.* 


*  Part  of  this  cape  Is  omitted. 
3  See.    also.    Williams    v.    .Tones,    ras.    t   nardu^.    20S   (1735) ;     Sh 
Jones,  7G  Tex.  141,  13  S.  W.  477  (ISOO). 


annon   v. 


24  ARREST  (Ch.  3 

SECTION  2.— WHO  MAY  ARREST 


It  has  been  provided  by  the  king  and  by  his  counsel  that  all,  as  well 
knights  as  others,  who  are  of  fifteen  and  more,  ought  to  swear,  that 
*  *  *  if  they  shall  hear  hue  and  cry  *  *  *  ^|^gy  shall  follow 
with  their  households  and  the  men  of  their  land,  *  *  *  and  that 
they  shall  arrest,  as  far  as  may  be  in  their  power,  those  whom  they 
regard  as  suspected  without  waiting  for  the  mandate  of  the  justice 
or  of  the  viscount,  g,nd  that  what  they  shall  have  done  thereupon  they 
shall  certify  to  the  justices  or  the  viscount.* 

Bracton,  fol.  116. 


COMMONWEALTH  v.  CAREY. 

(Supreme   Judicial    Court   of   Massachusetts,    1853.     12    Cush.   S46.) 

This  was  an  indictment .  for  murder,  tried  at  Cambridge,  June  2, 
1851,  before  the  Chief  Justice,  and  Fletcher  and  Bigelow,  JJ.,  charg- 
ing the  prisoner  with  the  murder  of  George  Heywood,  at  Lincoln,  in 
the  county  of  Middlesex,  the  27th  day  of  December,  1850.     *     *     * 

Shaw,  C.  j.s  ♦  *  *  Upon  the  question  of  the  legality  of  the 
arrest,  the  opinion  of  the  court  was  that  any  person,  whether  a  police 
officer  or  a  private  person,  may  lawfully  arrest  any  one  guilty  of  a 
felony,  with  a  view  to  bring  him  before  a  miigistrate,  that  proceedings 
may  be  further  taken  to  bring  him  to  punishment.® 

There  was  this  difference,  however,  that  a  private  person,  who  ar- 
rests another  on  a  charge  of  felony,  does  it  at  the  peril  of  being  able 
to  prove  a  felony  actually  committed  by  the  person  arrested.'' 

But  if  a  constable  or  other  peace  officer  arrest  a  person  without  a 
warrant,  he  is  not  bound  to  show  in  his  justification  a  felony  actually 

*  "The  ordinary  man  seems  to  have  been  expected  to  he  very  active  In  the 
pursuit  of  malefactors,  and  yet  'to  act  at  his  peril.'  This  may  be  one  of  the 
reasons  whj-,  as  any  eyre  roll  will  show,  arrests  were  rarely  made,  except 
when  there  was  hot  pursuit  after  a  'hand-having'  thief."  2  Pol.  &  Mait. 
Hist.  Eng.  Law,  581. 

»  Part  of  this  case  Is  omitted. 

•  Accord:  On  fresh  pursuit:  Commonwealth  t.  Grether,  204  Pa.  203,  53 
Atl.  753  (1902) ;    Rex  v.  Howarth,  1  Moody,  207  (1S2S). 

T  Accord:  Siegel,  Cooper  &  Co.  v  Connor,  70  111.  App.  116  (1807).  The 
more  general  rule  is  stated  by  Savage,  C.  J.,  in  Holley  v.  Mix,  3  Wend.  (N. 
Y.)  350,  20  Am.  Dec.  702  (1820),  as  follows:  "If  an  innocent  person  is  arrested 
upon  suspicion  by  a  private  individual,  such  individual  is  excused  if  a  felony 
was  in  fact  committed,  and  there  was  reasonable  ground  to  suspect  the  person 
arrested."  Accord:  Allen  v.  Wright,  8  C.  &  P.  522  (1838);  Reuck  v.  Mc- 
Gregor, 32  N.  J.  Law,  70  (ISOO) ;  Tea garden  v.  Graham.  31  Ind.  422  (ISO!)) ; 
Brooks  V.  Commonwealth,  01  Pa.  352,  100  Am.  Dec.  G45  (ISO'J) ;  Carr  v.  State, 
43  Ark.  99  (1SS4). 


Ch.  3)  ARRfiST  25 

committed,  to  render  the  arrest  lawful ;  but  if  he  suspects  one  on  his 
own  knowledge  of  facts,  or  on  facts  communicated  to  him  by  others, 
and  thereupon  he  has  reasonable  ground  to  believe  that  the  accused 
has  been  guilty  of  felony,  the  arrest  is  not  unlawful. 

Nor  is  it  necessary,  when  a  third  person  makes  a  complaint  to  a 
peace  officer  against  a  person,  and  gives  him  in  charge  to  the  oflicer, 
that  the  accusation  should  in  terms  technically  import  a  felony;  but 
when  the  language  in  its  popular  sense  would  import  such  charge,  it 
is  sufficient,  as  where  one  says  to  a  peace  officer,  I  wish  you  to  take 
such  a  person  in  charge  for  having  in  his  possession  counterfeit  bills, 
the  natural  import  is  that  he  intends  to  charge  the  party  accused  with 
having  in  his  possession  counterfeit  bills,  knowing  them  to  be  counter- 
feit, and  with  an  intent  to  pass  the  same,  without  which  incidents  such 
possession  would  be  innocent,  and  import  no  criminal  charge  at  all. 

But  the  court  were  further  of  opinion  that  a  constable  or  other  peace 
officer  could  not  arrest  one  without  a  warrant  for  a  crime  proved  or 
suspected,  if  such  crime  were  not  an  offense  amounting  in  law  to  fel- 
ony.® 

This  is  the  old  established  rule  of  the  common  law,  adopted  and 
acted  upon  in  this  commonwealth,  by  which  courts  of  justice  are  bound 
to  be  governed,  until  altered  by  the  Legislature;  that  anciently  there 
was  a  broad  and  marked  distinction  between  felony  and  misdemeanor, 
the  former  being  attended  at  common  law  with  forfeiture  of  all  the 
offender's  goods ;  that  by  the  statutes  of  this  commonwealth,  and  es- 
pecially by  the  revised  statutes,  the  line  of  distinction  between  felonies 
and  misdemeanors  \yas  in  a  great  measure  obliterated,  and  in  many 
instances  the  law  regarded  as  misdemeanors  offenses  of  a  greater  mor- 
al turpitude  than  many  felonies,  yet  it  had  not  changed  the  rule  in 
question,  though  perhaps  it  might  be  more  wise  in  the  Legislature  to 
make  the  rule  in  question  appHcable  to  offenses  measured  by  a  differ- 

8  Accord:  S.  A.  &  A.  Ry.  Co.  v.  Griffin,  20  Tex.  Civ.  App.  91,  48  S.  W. 
542  (1898) ;  In  re  Wav,  41  Mich,  299,  1  N.  W.  1021  (1879) ;  Commonwealth 
V.  Wright,  158  Mass.  149,  33  N.  E.  82,  19  L.  R.  A.  206.  35  Am.  St.  Rep.  475 
(1893).  Except  in  breaches  of  the  peace  when  the  officer  is  present  at  the 
time  the  breach  of  the  peace  is  committed.  Coupey  v.  Henley,  2  Esp.  540 
(1796);  Shanley  v.  Wells,  71  111.  78  (1S73) ;  Pow  v.  Beckner,  3  Ind.  475 
(1852) ;  Cook  v.  Nethercote,  6  C.  &  P.  741  (1835) ;  Fox  v.  Gaunt,  3  Barn.  & 
Adoi:  798  (1832).  Or  imless  the  offense  may  be  reasonably  supposed  to 
eventuate  in  a  felony,  as  wounding  in  an  affray.  Coupey  v.  Henley,  2  Esp. 
540  (1796) ;    Shanley  v.  Wells.  71  111.  78  (1873). 

Statutes  now  very  generally  allow  arrests  by  officers  without  warrant 
for  misdemeanors  done  in  the  presence  of  the  officer,  or  on  immediate  pur- 
suit of  the  offender.  O'Brian  v.  State,  12  Ind.  369  (1859) ;  Hanway  v.  Boult- 
bee,  4  C.  &  P.  350  (1830). 

"The  authorities  from  the  Year  Books  down  to  the  most  recent  and  ap- 
proved text-writers  flow  in  one  uniform  course,  and  all  agree  that  a  justice 
of  the  peace,  in  a  criminal  case,  may  authorize  any  person  whom  he  pleases 
to  be  his  officer.  All,  however,  consider  that  it  is  better  to  direct  his  process 
to  the  constable  of  the  place  where  it  is  to  be  executed ;  and  this  because  no 
other  constable  (or,  a  fortiori,  a  private  person)  can  be  compelled  to  execute 
it"    King,  P.,  in  Commonwealth  v.  Keeper,  1  Ashm.  (Pa.)  183  (1828). 


-26  ARREST  (Ch.  3 

ent  standard  of  aggravation,  as  by  being  punishable  in  the  state  prison, 
or  otherwise. 

The  court  further  held,  under  this  rule,  and  as  applicable  to  this 
case,  that  if  Mr.  Heywood  suspected,  or  had  reasonable  cause  to  sus- 
pect, and  acted  on  the  suspicion,  that  the  person  had  stolen  money,  or 
any  other  property,  from  the  ticket  office,  inasmuch  as  such  stealing 
would  have  been  larceny,  and  of  course  felony,  the  arrest  was  lawful, 
and  the  homicide  committed  by  the  person  in  attempting  to  escape 
wourd  be  murder,  and  not  manslaughter,  and  that  this  would  be  a  ques- 
tion of  fact  for  the  jury.  But,  further,  that  the  breaking  open  of  the 
ticket  office,  though  with  an  intent  to  steal,  but  without  in  fact  steal- 
ing, was  a  misdemeanor,  and  not  a  felony,  and  the  arrest  of  the  prison- 
er for  that  offense,  or  on  a  suspicion  and  belief,  by  a  peace  officer,  that 
he  had  committed  that  offense,  would  not  be  a  lawful  arrest.  It  was 
the  breaking  of  an  office  in  the  daytime,  and  came  under  the  provisions 
of  Rev.  St.  c.  126,  §  13. 

The  court  remarked  that  St.  1804,  c.  143,  §  5,  which  had  been  cited, 
had  denominated  the  breaking  a  shop  in  the  daytime,  under  certain  cir- 
cumstances, a  felonious  offense;  yet  two  circumstances  rendered  that 
statute  inapplicable  to  the  present  case.  One  was  that  it  was  accom- 
panied with  the  circumstance  that  such  breaking  be  done  when  some 
one  is  in  the  house,  and  putting  such  person  in  fear,  one  of  the  aggra- 
vating circumstances  belonging  to  the  offenses  of  burglary  and  rob- 
bery ;  and  the  other  was  that  the  statute  has  been  repealed,  without  the 
re-enactment  of  any  similar  provision  describing  it  as  felony,  but  leav- 
ing it,  as  at  common  law,  in  the  class  of  misdemeanors.  If  the  de- 
ceased, therefore,  in  the  present  case,  although  legally  qualified  as  a 
peace  officer,  understood,  suspected,  and  believed  only  that  the  pris- 
oner hadl  broken  open  the  ticket  office,  though  with  an  intent  to  steal, 
and,  acting  upon  that  knowledge,  suspicion,  or  belief,  arrested  the  per- 
son without  a  warrant,  it  was  an  unlawful  arrest. 

In  regard  to  the  letter  sent  by  Blaisdell  to  the  deceased,  the  court 
were  of  opinion  that  it  did  not  charge  a  felony,  so  as  to  make  the  ar- 
rest lawful  without  a  warrant.  It  did  not  state  or  imply  that  the  pris- 
oner had  stolen  anything  from  the  Stony  Brook  depot.  Breaking  open 
the  depot  would,  of  itself,  be  an  offense  for  which  the  perpetrator 
would  be  liable  to  a  severe  punishment,  but  in  character  it  was  a  mis- 
demeanor, and  not  a  felony ;  and,  therefore,  charging  the  prisoner 
with  having  broken  open  that  depot  did  not  directly,  or  by  implication, 
charge  a  felonious  offense,  for  which  he  could  lawfully  be  arrested 
without  a  warrant.  It  is  distinguishable  from  the  case  before  men- 
tioned, of  giving  one  in  charge  for  having  counterfeit  notes  in  his  pos- 
session, because  that  charge  necessarily  implies  a  guilty  knowledge 
and  a  guilty  purpose,  which,  if  they  make  the  act  criminal  at  all,  make 
it  a  felonious  one.  Such  were  held  to  be  the  rules  of  law  under  which 
the  court  determined  tliat  the  case  must  go  to  the  jury. 

Upon  the  announcement  of  the  foregoing  rulings,  the  counsel  for 


Ch.  3)  ARREST  27 

the  prisoner  stated  that  they  were  not  aware  of  any  testimony  which 
would  essentially  modify  or  control  the  case  as  it  was  presented  by  the 
evidence  submitted  on  behalf  of  the  government ;  and  they  proposed 
to  submit  it  to  the  jury  under  the  instructions  of  the  court. 

The  Chief  Justice  then  charged  the  jury  in  conformity  with  the  fore- 
going rulings,  and  they  returned  a  verdict  of  guilty  of  manslaughter. 


STATE  V.  TAYLOR  et  al. 

<Supreme  Court  of  Vermont,  Windsor,  1S98.    70  Vt.  1,  39  Atl.  447,  42  L.  R, 
A.  673,  67  Am,  St.  Rep.  G4S.) 

Indictment  of  G.  O.  Taylor  and  John  O'Donald  for  an  assault  with 
intent  to  kill  and  murder.  Verdict  and  judgment  of  guilty,  and  sen- 
tence imposed  at  the  respondents'  request.  The  respondents  excepted. 
Exceptions  sustained. 

MuNSON,  J.*  The  alleged  assault  was  committed  upon  Paul  Tink- 
ham,  constable  of  Rochester,  and  three  persons  acting  under  him, 
while  they  were  effecting  an  arrest  of  the  respondents  and  two  others, 
without  a  warrant,  on  suspicion  of  felony.  The  officer  acted  upon  in- 
formation received  from  Brandon  by  telephone,  to  the  effect  that  the 
post  office  at  Ticonderoga,  N.  Y.,  had  been  burglarized  the  night  be- 
fore, and  that  four  persons  suspected  of  the  crime  had  left  Forestdale, 
going  in  the  direction  of  Rochester.  When  met  by  the  officer  and  his 
assistants,  the  suspected  party  were  coming  along  the  highway  in  a 
wagon,  driven  by  a  liveryman  from  Forestdale. 

The  jury  have  found,  under  the  charge  of  the  court,  that  when  Tink- 
ham  met  the  respondents'  party  he  said  to  them  that  he  arrested  them 
by  the  authority  of  the  state  of  Vermont,  and  that,  upon  inquiry  being 
made  as  to  which  was  the  officer,  Tinkham  was  designated  as  such  by 
one  of  his  party.  The  remainder  of  the  transaction  must  be  taken  to 
have  been  in  accordance  with  the  testimony  most  favorable  to  the  re- 
spondents' claim.  The  purport  of  this  was  that  one  of  the  respondents' 
party  then  asked  Tinkham  if  he  had  any  papers,  and  that  Tinkham 
thereupon  pulled  a  revolver  from  his  pocket,  saying  that  was  all  the 
papers  he  needed,  at  once  returning  the  revolver  to  his  pocket ;  and 
that  respondent  Taylor  then  said,  with  an  oath,  "You  can't  take  this 
party  without  papers;"  and  that  upon  this  all  four  of  the  suspected 
persons  commenced  to  get  out  of  the  wagon,  some  of  them  firing  at 
the  constable's  party  as  they  did  so. 

The  jury  were  instructed,  in  substance,  that,  if  Tinkham  had  rea- 
sonable cause  to  suspect  that  the  respondents  had  committed  a  bur- 
glary, he  could  arrest  them  without  a  warrant ;  and  that  if  he  told  them 
that  he  arrested  them  by  the  authority  of  the  state  of  Vermont,  and  if 
they  knew  he  was  an  officer,  it  was  their  duty  to  submit ;   and  that,  if 

®  Part  of  this  case  is  omitted.    The  judgment  was  reversed  on  other  grounds 


28  ARREST  (Ch.  3 

they  shot  the  officer  under  these  circumstances,  they  were  gtiilty  of  an 
assault  with  intent  to  murder.  The  respondents  insist  that  the  officer 
had  no  right  to  arrest  without  a  warrant  for  a  felony  committed  in  an- 
other state;  and  that,  if  he  had  that  right,  there  was  a  failure  to  dis- 
close his  authority,  which  justified  their  resistance;  and  that,  in  any 
event,  the  manner  of  the  arrest  was  such  that  the  grade  of  the  offense 
should  have  been  left  to  the  determination  of  the  jury. 

It  has  been  held  in  most  of  the  states  that,  when  one  charged  with 
the  commission  of  a  felony  in  one  state  escapes  to  another,  he  may  be 
there  arrested  and  detained  before  a  demand  for  his  return  has  been 
made  by  the  governor  of  the  state  from  which  he  has  fled.  In  most  of 
the  cases  where  this  doctrine  has  been  enunciated  the  arrest  was  made 
upon  the  warrant  of  a  magistrate.  But  in  State  v.  Anderson,  1  Hill 
(S.  C.)  327,  it  was  held  that  an  arrest  by  a  private  person,  without  a' 
warrant,  could  be  justified  by  showing  prima  facie  that  a  felony  had 
been  committed  in  another  state,  and  that  the  party  arrested  was  the 
perpetrator.  It  is  clearly  the  tenor  of  the  decisions' tliat  the  machinery 
provided  for  the  arrest  of  local  offenders  is  available  for  the  arrest  of 
fugitives  from  another  jurisdiction ;  and  it  must  follow  that,  when  the 
arrest  without  warrant  is  made  by  an  officer,  it  will  be  sufficient  for 
his  justification  if  it  appear  that  he  had  reasonable  cause  to  beheve  that 
the  person  arrested  had  committed  a  felony  in  another  state,  although 
more  than  this  may  be  required  for  his  detention,  when  brought  be- 
fore a  magistrate.  So,  in  Ex  parte  Henry,  29  How.  Prac.  (N.  Y.)  185, 
it  was  said  that  the  officers  were  undoubtedly  authorized  to  arrest  the 
prisoner  upon  reasonable  ground  of  suspicion,  although  there  was  no 
proof  on  the  hearing  that  the  suspicion  was  well  founded.  It  is  well 
settled  that  the  person  whose  arrest  is  attempted  must  have  notice  of 
the  authority  and  purpose  of  the  person  who  undertakes  to  arrest  him. 
The  first  case  in  which  this  matter  is  elaborately  treated  is  that  of 

Mackaley,  reported  in  Cro.  Jac.  279,  and  more  fully  in  9  Coke,  61. 

*  *    * 

It  is  frequently  said  in  the  text-books  and  in  judicial  discussions  that 
an  officer  must  show  his  warrant,  or  state  the  grounds  of  the  arrest, 
if  demanded.  But  an  examination  of  the  authorities  will  show  conclu- 
sively that  this  is  not  a  part  of  the  arrest,  but  a  duty  which  imme- 
diately follows  it.  Upon  submitting  to  the  officer,  the  arrested  party 
is  entitled  to  this  information;  but  he  cannot  put  off  the  arrest,  and 
increase  his  chances  of  escape,  by  requiring  an  explanation  in  advance. 

*  *  *  It  is  evident  from  the  adjudged  cases  that  in  the  rule  above 
stated,  as  to  what  is  essential  in  making  an  arrest,  notice  of  the  of- 
ficer's authority  means  notice  of  his  official  character,  and  not  of  the 
exact  circumstances  which  authorize  the  arrest ;  and  that  notice  of 
his  purpose  relates  to  the  purpose  to  arrest,  and  not  to  the  purpose 
of  the  arrest.  It  is  beyond  question  that,  in  making  an  arrest  by  vir- 
tue of  a  warrant,  the  officer  cannot  be  required  to  show  the  warrant, 


Ch.3)  ARREST  29 

or  state  the  substance  of  it,  until  the  arrest  is  accomplished.  In  this 
case  there  was  no  warrant,  and  the  officer  could  arrest  without  one 
only  in  certain  classes  of  cases.  But  we  think  the  officer  was  no  more 
obliged  to  state  the  conditions  which  authorized  him  to  arrest  without 
a  warrant  than  he  would  have  been  to  produce  his  warrant,  or  state 
the  substance  of  it,  in  case  of  an  arrest  on  warrant.  All  that  the  re- 
spondents could  require,  in  the  hrst  instance,  was  a  statement  suffi- 
cient to  show  that  the  person  who  demanded  their  arrest  was  an  of- 
ficer, acting  in  his  official  capacity.  This  was  clearly  covered  by  the 
designation  of  Tinkham  as  the  officer,  and  by  his  statement  that  he 
arrested  them  by  the  authority  of  the  state  of  Vermont. 

It  appears,  then,  that  the  words  of  arrest  employed  by  the  officer 
were  such  as  entitled  him  to  an  immediate  submission  to  his  authority, 
without  answering  the  question  regarding  papers.  *  *  *  Excep- 
tions sustained,  sentence  vacated,  and  cause  remanded. 


SECTION  3.— RIGHTS  AND  DUTIES  OF  PERSON  MAKING 

ARREST 


]\IACKALLEY'S  CASE. 

(Court  of  King's   Bencli,  1611.     9  Coke,   65,  b.) 

By  the  king's  command  all  the  judges  of  England  were  ordered  to 
meet  together  to  resolve  what  the  law  was,  upon  the  said  record ;  and 
accordingly  all  the  judges  of  England,  and  barons  of  the  exchequer, 
met  together  the  beginning  of  Hilary  term  now  last  past,  and  heard 
counsel  learned  upon  this  special  verdict,  as  well  of  the  prisoners,  as 
of  the  king;  that  is  to  say,  Serjeant  Harris  the  younger,  Anthony  Diot 
and  Randall  Crewe  of  counsel  with  the  prisoners,  and  Yelverton,  Wa- 
ters, and  Coventry  for  the  king.  And  the  matter  was  very  well  ar- 
gued by  counsel  learned  on  both  sides  at  two  several  days  in  the  same 
term ;  and  divers  exceptions  were  taken  to  the  indictment  and  to  the 
verdict  also. 

First,  against  the  indictment  five  exceptions  were  moved.  (1)  Be- 
cause it  appears  that  the  arrest  was  tortious,  and  by  consequence  the 
killing  of  the  serjeant  could  not  be  murder,  but  manslaughter,  and  they 
argued  that  the  arrest  alledged  in  the  indictment  was  tortious,  because 
it  was  made  in  the  night,  that  is  to  say,  18  Diem  Nov.  inter  horas  quin- 
tam  et  sextam  post  meridiem,  which  appears  to  the  court  to  be  in  the 
night,  and  the  night  is  a  time  of  rest  and  repose,  and  not  to  arrest  any 
by  his  body,  for  thereof  would  ensue  (as  in  hoc  casu  accidit)  blood- 
shed;  for  the  officer  and  minister  of  justice  cannot  have  such  assist- 
ance, nor  can  the  peace  be  so  well  kept  in  the  night,  that  is  to  say,  in 


30  ARREST  ^  (Ch.  3 

tenebris,  as  in  the  day,  in  aperta  luce :  and  the  prisoner  cannot  know 
the  officer  or  ministers  of  justice  in  the  night;  nor  can  the  prisoner  so 
soon  find  sureties  for  his  appearance  in  the  night  and  thereby  avoid  his 
imprisonment,  as  he  may  in  the  day :  and  they  cited  11  H.  VII,  5,  a, 
that  the  lord  shall  not  distrain  for  his  rent  or  services  in  the  night. 
But  it  was  answered  by  the  counsel  with  the  king,  and  in  the  end  re- 
solved by  all  the  judges  and  barons  of  the  exchequer,  that  the  arrest 
in  the  night  is  lawful,  as  well  at  the  suit  of  a  subject  as  at  the  king's 
suit;  for  the  officer  or  minister  of  justice  ought  to  arrest  him  when 
he  can  find  him ;  for  otherwise  perhaps  he  will  never  arrest  him.  *  *  * 

As  the  officer  or  minister  of  justice  may,  by  force  of  a  warrant  di- 
rected to  him,  arrest  any  at  the  king's  suit  either  for  felony  or  other 
crime  in  the  night,  so  may  he  do  at  a  subject's  suit;  for  the  king  has 
no  more  prerogative  as  to  the  time  to  make  an  arrest,  than  a  subject; 
for  the  arrest  is  to  no  other  intent  than  to  bring  the  party  to  justice; 
and  it  appears  by  the  opinion  of  the  court  in  the  King's  Bench  in  Se- 
maine's  Case  in  the  fifth  part  of  my  Reports,  that  the  sheriffs  may 
arrest  in  the  night,  as  well  at  the  suit  of  a  subject,  as  at  the  king's  suit. 
And  in  Heydon's  Case  in  the  fourth  part  of  my  Reports  it  is  resolved, 
that  if  one  kills  a  watchman  in  execution  of  his  office,  it  is  murder, 
and  yet  that  is  done  in  the  night;  and  if  an  affray  be  made  in  the 
night,  and  the  constable,  or  any  other  who  comes  to  aid  him  to  keep 
the  peace,  be  killed,  it  is  murder;  for  when  the  constable  commands 
them  in  the  king's  name  to  keep  the  peace,  although  they  cannot  dis- 
cern or  know  him  to  be  a  constable,  yet  at  their  peril  they  ought  to 
obey  him.^" 

It  was  also  resolved,  that  although  in  truth  between  five  and  six  of 
the  clock  in  November  is  part  of  the  night,  yet  the  court  is  not  bound 
ex  officio  to  take  conusance  of  it,  no  more  than  in  the  case  of  burglary, 
without  these  words,  in  nocte  ejusdemdiei,  or  noctanter. 

2.  It  was  objected,  that  Sunday  is  not  dies  jurisdicus,  and  therefore 
no  arrest  can  be  made  thereon,  but  it  is  the  sabbath,  and  therefore 
thereon  everyone  ought  to  abstain  from  secular  affairs  for  the  better 
worship  and  service  of  God  in  spirit  and  truth.  As  to  that  it  was 
answered  and  resolved,  that  no  judicial  act  ouglit  to  be  done  on  that 
day,  but  ministerial  acts  may  be  lawfully  executed  on  the  Sunday ;  for 
otherwise  peradventure  they  can  never  be  executed ;  and  God  permits 
things  of  necessity  to  be  done  that  day ;  and  Christ  says  in  the  Gos- 
pel, "Bonum  est  benefacere  in  Sabbatho."  *    *    ♦ 

4.  It  was  objected,  that  the  said  arrest  found  by  the  verdict  was 
not  lawful,  for  the  serjeant  in  this  case  ought  to  have,  when  he  ar- 
rested him,  shewed  at  whose  suit,  out  of  what  court,  for  what  cause  he 
made  the  arrest,  and  in  what  court  it  is  returnable,  to  the  intent,  that 
if  it  be  for  any  execution,  he  might  pay  the  money,  and  free  his  body; 
and  if  it  be  upon  mean  process,  either  to  agree  with  the  party  to  put 

10  Tart  of  this  cape  is  omitted. 


Ch.  3)  ARREST  31 

in  bail  according  to  the  law,  and  to  know  when  he  shall  appear,  as  it 
is  resolved  in  the  Countess  of  Rutland's  Case,  in  the  sixth  part  of  my 
Reports,  f.  54.  But  in  the  case  at  bar  the  serjeant  said  nothing  but 
"I  arrest  you  in  the  king's  name,  at  the  suit  of  Mr.  Radford,"  and  so 
the  arrest  not  lawful,  and  by  consequence  the  offense  is  not  murder. 
As  to  that  it  was  answered  and  resolved,  that  it  is  true  that  it  is  held 
in  the  Countess  of  Rutland's  Case,  that  the  sheriff,  etc.,  or  serjeant 
ought  upon  the  arrest  to  show  at  whose  suit,  etc.,  but  that  is  to  be 
intended  when  the  party  arrested  submits  himself  to  the  arrest,  and 
not  when  the  party  (as  in  this  case  JMurray  did)  makes  resistance  and 
interrupts  him,  and  before  he  could  speak  all  his  words,  he  was  by 
them  mortally  wounded  and  murdered,  in  which  case,  the  prisoners 
shall  not  take  advantage  of  their  own  wrong.  It  was  also  resolved, 
that  if  one  knows  that  the  sheriff,  etc.,  has  process  to  arrest  him,  and 
the  sheriff,  etc.,  coming  to  arrest  him,  the  defendant  to  prevent  the 
slierift''s  arresting  him,  kills  him  with  a  gun  or  any  other  engine  or 
weapon,  before  any  arrest  made,  it  is  murder ;  a  fortiori  in  the  case 
at  bar,  when  he  knew  by  the  said  words,  that  the  serjeant  came  to  ar- 
rest him.    *     *    * 

6.  It  was  objected,  that  the  serjeant  at  the  time,  nor  before  the  ar- 
rest showed  the  prisoner  his  mace ;  for  thereby  he  is  known  to  be  the 
minister  of  the  law,  and  from  thence  he  has  his  name,  S.  Serviens  ad 
clavam;  et  non  allocatur  for  two  causes:  (1)  Because  the  jury  have 
found,  that  he  was  serviens  ad  clavam  dicti  vicecomitis,  et  juratus,  et 
cognitus,  et  minister  cur;  and  a  bailiff  sworn  and  known  need  not  (al- 
though the  party  demands  it)  show  his  warrant ;  nor  any  other  special 
bailiff'  is  not  bound  to  show  his  warrant,  without  demand  of  it  (8  Edw. 
IV,  14,  a;  14  Hen.  VII,  9,  b;  21  Hen.  VII,  23,  a),  and  where  the  books 
speak  of  a  known  bailiff,  it  is  not  requisite  that  he  be  known  to  the 
party  who  is  to  be  arrested,  but  if  he  be  commonly  known  it  is  suffi- 
cient. (2)  If  notice  was  requisite,  he  gave  sufficient  notice  when  he 
said,  "I  arrest  you  in  the  king's  name,"  etc.,  and  the  party  at  his  peril 
ought  to  obey  him;  and  if  he  has  no  lawful  warrant,  he  may  have  his 
action  of  false  imprisonment.  So  that  in  this  case  without  question  the 
serjeant  need  not  show  his  mace;  and  if  they  should  be  obliged  to 
show,  their  mace,  it  would  be  a  warning  for  the  party  to  be  arrested 
to  fiy.    *    *    * 


ANONYI.IOUS. 

(Upper  Bench,  1G50.     Style,   23S.) 

The  court  was  moved  that  one  was  arrested  upon  a  day  of  thanks- 
giving appointed  by  Parliament,  and  that  he  was  forced  to  put  in  bond 
to  the  sheriff  for  his  appearance,  and  therefore  it  was  prayed  that  the 
party  arrested  might'  be  discharged,  and  that  the  bond  given  to  the 
sheriff  might  be  delivered  up. 


32  ARREST  (Ch.  3 

RoLiv,  the  Chief  Justice,  answered:  Indict  the  bailies  that  made  the 
arrest,  or  bring-  your  action  against  them,  if  you  please,  for  we  will 
not  discharge  the  party  arrested.^^ 


ANONYMOUS. 

(Upper  Bench,  1G53.    Style,  395.) 

The  court  was  moved  to  discharge  one  Cullins,  that  was  arrested 
as  he  was  attending  the  court  to  give  testimony  as  a  witness  in  a  cause, 
and  for  an  attachment  against  the  parties  that  did  arrest  him. 

German,  Justice  (absente,  RolIv,  Chief  Justice).^  Take  a  supersede- 
as, and  let  the  parties  show  cause  why  an  attachment  shall  not  be 
granted  against  them  that  arrested  him.^^ 


UNITED  STATES  v.  RICE. 

^Circuit  Court,  W.  D.  North  Carolina,  1S75.     1  Hughes,  5G0,  Fed.  Cas.  No. 

10,153.) 

On  the  15th  of  last  September,  Andrew  Woody,  of  Spring  Creek, 
Madison  county,  was  killed  by  Noah  H.  Rice,  a  United  States  deputy 
marshal,  who  w^as  endeavoring  to  serve  a  capias  on  him  for  violation 
of  the  internal  revenue  laws.  From  facts  developed  before  the  court 
it  appears  that  Woody  had  expressed  a  determination  to  resist  any 
process  which  might  issue  against  him,  and  had  threatened  to  kill  the 
defendant,  Rice,  if  he  attempted  to  arrest  him.  When  this  officer  came 
upon  Woody,  the  latter  was  armed  with  a  rifle.  His  demeanor  was 
hostile,  and  when  commanded  to  surrender  he  so  acted  as  to  impress 
the  officer  with  the  belief  that  his  intention  was  to  shoot  him,  and  in 
self-defense  he  fired  upon  Woody  with  fatal  efi'ect.  Rice  came  to 
Asheville  and  surrendered  himself  to  the  authorities,  was  examined 
by  Commissioner  Watts  on  application  for  bail,  and  committed  to  jail. 
His  case  was  finally  removed  to  the  United  States  court.  On  Tuesday, 
May  11,  1875,  he  was  placed  upon  trial  for  his  life.  The  jury  hav- 
ing requested  full  instructions  from  the  bench,  they  were  given  as 
follows  by 

Dick,  J.^'  As  this  is  a  case  of  considerable  importance  to  the  de- 
fendant, and  also  to  the  due  administration  of  justice,  I  have  deemed 

11  By  St.  20  Car.  II,  c.  7,  the  service  of  all  processes,  warrants,  orrlers,  etc., 
on  Sunday,  were  made  unlawful,  except  for  treason,  felony,  or  breach  of  the 
peace.  Under  this  statute  it  was  held  that  any  offense  which  subjected  the 
party  to  an  indictment  was  constructively  a  breach  of  the  peace.  See 
Pearce  v.  Atwood,  13  JIass.  347  (1816). 

12  See  Carle  v.  Delesdernier,  13  Me.  303.  29  Am.  Dec.  50S  (1S36) ;  State  T. 
Polachock,  101  Wis.  427,  77  N.  W.  708  (18'JS). 

13  Tart  of  the  charge  is  omitted. 


Ch.  3)  ARRKST  33 

it  proper  to  commit  to  writing  my  instructions  to  the  jury  upon  the 
questions  of  law  involved.    *    *    * 

It  is  conceded  that  the  alleged  homicide  was  committed  by  the  de- 
fendant, and  he  places  his  defense  upon  the  ground  that  he  was  a  reg- 
ular constituted  officer  of  the  United  States,  and  had  in  his  hands  at 
the  time  of  the  homicide  the  process  of  law  which  authorized  and  com- 
manded him  to  arrest  the  deceased  for  a  crime  against  the  United 
States ;  that  the  deceased  resisted  the  execution  of  such  process  with 
a  deadly  weapon  in  his  hands,  and  had  manifested  a  purpose  to  use 
such  deadly  weapon  in  resistance;  and  that  the  homicide  was  neces- 
sarily committed  in  the  attempt  to  make  an  arrest. 

This  defense  necessarily  leads  us  to  inquire  what  protection  the  com- 
mon law  affords  to  ministerial  officers,  and  how  far  they  are  author- 
ized to  go  in  the  performance  of  their  public  duties.     *     ■■'-     * 

Mr.  Justice  Foster  says:  "Ministers  of  justice  while  in  the  execu- 
tion of  their  offices  are  under  the  peculiar  protection  of  the  law."  Fos- 
ter, 308.  If  an  offi-cer  is  killed  while  performing  his  duty,  the  law 
deems  such  killing  murder  of  malice  prepense. 

This  protection  is  not  confined  to  the  precise  time  when  the  officer 
is  performing  his  official  duty,  but  extends  over  him  while  going  to, 
remaining  at,  and  returning  from  the  place  of  action.  Any  opposition, 
obstruction,  or  resistance  intended  to  prevent  an  officer  from  doing  his 
official  duty  is  an  indictable  offense  at  common  law,  and  the  punish- 
ment is  regulated  by  the  nature  of  the  offense. 

An  officer  is  authorized  to  summons  as  many  persons  as  may  be 
necessary  to  assist  him  in  the  performance  of  his  legal  duties,  and  such 
persons  are  bound  to  obey  such  summons,  and  they  are  under  the  same 
protection  afforded  to  officers,  as  they  are  for  the  time  officers  of  the 
law.  The  law  imposes  upon  private  persons  the  duty  of  suppressing 
affrays,  preventing  felonies  from  being  committed  in  their  presence, 
and  arresting  such  offenders  and  bringing  them  to  justice;  and  such 
private  persons,  while  performing  their  duties,  are  under  the  protec- 
tion of  the  law.  We  may  confidently  lay  down  the  broad  general  prin- 
ciple that,  when  any  person  is  performing  a  public  duty  required  of 
him  by  law,  he  is  under  the  protection  of  the  law.  An  officer  of  the 
lav/  who  has  legal  process  in  his  hands  is  bound  to  execute  it  accord- 
ing to  the  mandate  of  the  writ.  If  he  is  resisted  in  the  performance 
of  this  duty,  he  must  overcome  such  resistance  by  the  use  of  such  force 
as  may  be  necessary  for  him  to  execute  his  duty.  If  necessary,  the 
law  authorizes  him  to  resort  to  extreme  measures,  and  if  the  resist- 
ing party  is  killed  in  the  struggle  the  homicide  is  justifiable.  Garrett's 
Case,  60  N.  C.  144,  84  Am.  Dec.  359.^* 

14  A.ccorfl:  U.  S.  v.  Jailer,  2  Abb.  (U.  S.)  265.  15  Fed.  Cas.  No.  15 AP^ 
(1S67)  •  Smith  v.  State,  59  Ark.  132.  20  S.  W.  712,  43  Am.  St.  Rep.  20  (1894) ; 
State  of  North  Carolina  v.  Gosnell  (C.  C.)  74  Fed.  734  (1S9G) ;  Lynn  v.  People, 
170  111.  527,  48  N.  E.  9&4  (1897).  Contra,  where  arrest  is  for  a  misdemeanor: 
Stephens  v.'  Commonwealth  (Ky.)  47  S.  W.  229  (1S9S). 

Mik.Cr.Pb.(Abbidged  Ed.) — 3 


34  ARREST  (Ch.  3 

If  unnecessary  and  excessive  force  is  used,  after  resistance  has  en- 
tirely ceased  and  the  defendant  in  the  writ  has  manifested  his  willing- 
ness to  submit  to  the  mandates  of  the  law  and  be  arrested,  then,  if  the 
said  defendant  is  killed,  the  ofncer  will  be  guilty  of  manslaughter ;  and 
if  the  blood  had  time  to  cool,  the  killing  would  be  murder.  2  Whar- 
ton, Crim,  Law,  1030,  1031,  and  authorities  referred  to  in  note.^^  If, 
however,  the  defendant  in  the  writ  only  ceases  his  resistance  upon  the 
officer  desisting  from  his  attempt  to  arrest,  and  still  keeps  himself  in 
a  condition  to  renew  the  resistance  with  a  deadly  weapon,  if  the  of- 
ficer should  renew  the  effort  to  arrest,  and  the  officer  cannot  make 
the  arrest  without  great  personal  danger,  he  would  be  justified  in  kill- 
ing the  defendant. 

The  submission  of  the  defendant  in  such  a  case  is  not  complete,  and 
as  long  as  he  refuses  to  be  arrested  he  is  in  a  state  of  resistance;  and 
if  he  is  armed  with  a  deadly  weapon,  and  has  manifested  an  intent  to 
use  it,  and  still  keeps  the  weapon  in  his  possession  convenient  for  an 
emergency,  and  the  officer  has  reasonable  grounds  for  believing  that 
the  weapon  will  be  used  if  an  arrest  is  attempted,  the  officer  is  not  re- 
quired to  risk  his  life  in  a  rencounter,  or  desist  from  an  effort  to  per- 
form his  duty.  When  a  person  puts  himself  in  an  armed  and  deadly 
resistance  to  the  process  of  the  law,  he  becomes  virtually  an  outlaw, 
and  officers  are  not  required  to  show  him  the  courtesy  of  a  chivalrous 
antagonist  and  give  him  an  open  field  and  fair  fight.  It  is  only  when 
a  criminal  submits  to  the  law  that  it  throws  round  him  the  mantle  of 
protection  and  administers  justice  with  mercy.  It  is  the  duty  of  every 
offender  charged  with  crime  in  due  process  of  law  to  quietlv  yield 
himself  up  toV^blic  justice.  State  v.  Bryant,  65  N.  C.  327;  Stale  v. 
Garrett,  60  N.  C.  144,  84  Am.  Dec.  359. 

A  known  officer,  in  attempting  to  make  an  arrest  by  virtue  of  a  war- 
rant, is  not  bound  to  exhibit  his  warrant  and  read  it  to  a  defendant 
before  he  secures  him.  if  he  resists :  if  no  resistance  is  offered,  the  of- 
ficer ought  always,  upon  demand  made,  show  his  warrant  to  the  party 
arrested  or  notify  him  of  the  substance  of  the  warrant,  so  that  he  may 
have  no  excuse  for  placing  himself  in  opposition  to  the  process  of  the 
law.  This  is  only  a  rule  of  precaution.  A  defendant  is  bound  to  sub- 
mit to  a  known  officer;  to  yield  himself  immediately  and  peaceably 
into  the  custody  of  the  officer  before  the  law  gives  him  the  right  of 
having  the  warrant  read  and  explained,  when  in  resistance  the  law 
shows  him  no  favor.  A  defendant,  knowing  the  arresting  party  to 
be  an  ofiicer,  is  bound  to  submit  to  the  arrest,  reserving  the  right  of 
action  against  the  officer  in  case  the  latter  be  in  the  wrong.  When  a 
person  acts  in  a  public  capacity  as  an  officer,  it  will  be  presumed  that 
he  was  rightfully  appointed.  1  Wharton  Cr.  Law,  §§  1289,  2925; 
Coolcy's  Case,  6  Gray  (Mass.)  350. 

One  who  is  not  a  known  officer  ought  to  show  his  warrant  and  read 

isArrord:  Hnsse's  Case,  Veut.  2iG  U^^2) ;  State  v.  Kose,  112  Mo.  418,  44 
S.  W.  'S-'J  (ISJS). 


Ch.  3)  ARREST  25 

it,  if  required;  but  it  would  seem  that  this  duty  is  not  so  imperative 
as  that  a  neglect  of  it  would  make  him  a  trespasser  ab  initio,  when 
there  is  proof  that  the  party  subject  to  be  arrested  had  notice  of  the 
warrant,  and  was  fully  aware  of  its  contents,  and  had  made  up  his 
mind  to  resist  its  execution  at  all  hazards.      Garrett's  Case,  supra. 

The  law,  in  its  humanity  and  justice,  will  not  allow  unnecessary 
force  to  be  used  in  the  execution  of  its  process.  If  a  defendant,  with- 
out any  deadly  weapon  or  manifestation  of  excessive  violence,  makes 
resistance,  an  officer  is  not  justified  in  willfully  shooting  him  down; 
but  if  a  defendant  has  a  deadly  weapon,  and  has  manifested  a  pur- 
pose to  use  it  if  an  arrest  is  attempted,  the  officer  is  not  bound  to 
wait  for  him  to  have  an  opportunity  of  carrying  his  purpose  into  ef- 
fect. If  the  warrant  is  for  a  misdemeanor,  and  a  defendant  attempts 
to  avoid  an  arrest  by  flight,  the  officer  has  no  right  to  shoot  him  down 
to  prevent  escape,  nor  even  after  an  arrest  has  been  made  and  defend- 
ant escapes  from  custody.     Foster's  Case,  1  Lew.  Cr.  Cas.  187.^° 

The  rule  is  different  in  cases  of  felony.     Bryant's  Case,  supra. ^' 

If  an  officer  has  process  in  his  hands  issuing-  from  a  court  of  com- 
petent jurisdiction  over  the  subject-matter,  authorizing  and  command- 
ing him  to  arrest  a  defendant,  he  is  entitled  to  the  protection  which 
the  laws  afford  officers  acting  under  process,  although  the  process  in 
his  hands  is  informal  and  irregular.  If  the  process  is  illegal  and  void 
on  its  face,  or  is  against  the  wrong  person,  or  its  execution  is  attempt- 
ed out  of  the  district  in  which  it  can  alone  be  executed,  then  the  officer 
would  not  be  under  the  protection  of  the  law;^®  but  it  would  seem 
that,  if  he  kills  a  resisting  party  under  such  circumstances,  he  would 
only  be  guilty  of  manslaughter,  unless  he  had  actual  knowledge  of 
his  want  of  authority,  or  acted  from  express  malice.     *     *     * 

The  jury,  after  a  retirement  of  two  hours,  found  a  verdict  of  "not 
guilty."  ^^ 

18  Accord:  ReneaTi  v.  State.  2  Lea  (Tenn.')  720,  31  Am.  Rep.  020  (1S70) ; 
Handley  v.  State,  96  Ala.  48.  11  South.  H22.  38  Am.  St.  Rep.  81  (1892);  State 
V.  Smith.  127  Iowa,  534.  103  N.  W.  944,  70  L.  R.  A.  246,  109  Am.  St.  Rep.  402, 
4  Ann.  Cas.  758  (1905). 

17  Accord:    Carr  v.  State,  43  Ark.  99  (1SS4). 

18  "A  warrant  issued  before  indictment  must  specify  the  offense  charged, 
the  antliority  under  which  it  issues,  the  person  who  is  to  execute  it.  aud  the 
person  to  be  arrested."     Nisbit,  J.,  in  Brady  v.  Davis,  9  Ga.  73  (1850). 

"By  the  common  law,  a  warrant  for  the  arrest  of  a  person  charped  with 
crime  must  truly  name  him,  or  describe  him  sufficiently  to  identify  him ; 
*  *  *  and  by  the  great  weight  of  authority  in  this  country  a  warrant  that 
does  not  do  so  will  not  justify  the  officer  making  the  arrest."  Gray,  J.,  in 
West  T.  Cabell,  153  U.  S.  78,  14  Sup.  Ct.  752,  38  L.  Ed.  643  (1894).  lUit  see 
Bailey  v.  Wiggins,  5  Har.  (Del.)  402,  60  Am.  Dec.  650  (l&j4) ;  Allen  v.  Leon- 
ard, 28  Iowa,  520  (1870)  ;    Tidball  v.  Williams,  2  Ariz.  50,  8  Pac.  351  (1SS5). 

19  In  elTecting  an  arrest  without  a  warrant,  for  a  felony,  the  person  ar- 
resting, whether  he  be  an  officer  or  a  private  person,  may  use  sufficient  force 
to  effect  the  arrest  of  the  felon,  even  to  the  extent  of  taking  life  if  necessary. 
1  Hale,  P.  C.  587,  588;  Conraddy  v.  People,  5  Parker,  Cr.  R,  234  (1802).  Cf. 
Regina  v.  [Murphy,  1  Cr.  &  Dix.  20  (1830). 

In  arresting  upon  suspicion  of  a  felony,  an  officer  (and,  a  fortiori,  a  private 
person)  can  only  justify  killing  the  person  lie  seeks  to  arrest  by  proof  that 


36  ARREST  (Ch.  3 

SEMAYNE'S  CASE. 

(Court  of  King's  Bench,  IGOl.     5  Coke,  91  a.) 

In  an  action  on  the  case  by  Peter  Semayne,  plaintiff,  and  Richard 
Gresham,  defendant,  *  *  *  these  points  were  resolved.  *  *  * 
(3)  In  all  cases  when  the  king  is  party,  the  sheriff,  if  the  doors  be  not 
open,  may  break  the  party's  house,  either  to  arrest  him  or  to  do  other 
execution  of  the  king's  process,  if  otherwise  he  cannot  enter.  But 
before  he  breaks  it,  he  ought  to  signify  the  cause  of  his  coming,  and 
to  make  request  to  open  the  doors ;  and  that  appears  well  by  the  Stat- 
ute of  Westm.  I,  c.  17  (which  is  but  an  affirmance  of  the  common  law), 
as  hereafter  appears,  for  the  law  without  a  default  in  the  owner  ab- 
hors the  destruction  or  breaking  of  any  house  (which  is  for  the  habi- 
tation and  safety  of  man),  by  which  great  damage  and  inconvenience 
might  ensue  to  the  party,  when  no  default  is  in  him;  for  perhaps  he 
did  not  know  of  the  process,  of  which,  if  he  had  notice,  it  is  to  be  pre- 
sumed that  he  would  obey  it,  and  that  appears  by  the  book  in  18  Edw. 
II,  Execut.  252,  where  it  is  said  that  the  king's  officer  who  comes  to 
do  execution,  etc.,  may  open  the  doors  which  are  shut,  and  break  them 
if  he  cannot  have  the  keys,  which  proves,  that  he  ought  first  to  demand 
them.     *     *     *2o 

the  feloiiv  was  actually  committed  by  some  one.  Conraddy  v.  People,  5  Par- 
ker. Cr.  R.  2.34  (1SG2).     Cf.  Re-x.  v.  Dadson,  3  Car.  &  K.  14S  JIS-JO). 

Since  one  arresting  for  a  misdemeanor,  with  a  warrant,  cannot  kill  merely 
to  effect  the  arrest,  in  arresting  for  such  an  offense  without  a  warrant  his 
.  rights  are  no  greater. 

"It  is  common  learning  that  an  officer  may,  without  a  precept  arrest  any 
person  he  finds  committing  an  offense.  It  is  also  well  known  that  he  must 
within  a  reasonable  time,  bring  his  prisoner  before  the  proper  court,  or  obtain 
a  legal  precept  for  detaining  him.  A  failure  to  do  so  may  make  the  olticer 
a  trespasser.  Rev.  St.  c.  133,  §  4.  An  officer,  making  an  arrest  upon  a 
criminal  charge,  may  also  take  from  his  prisoner  the  instruments  of  the  crime 
and  such  other  articles  as  may  be  of  use  as  evidence  upon  the  trial.  These 
may  not  be  confiscated  or  destroyed  by  the  officer,  however,  without  some 
order  or  judgment  of  a  court.  We  do  not  find  any  authority  or  reason  for 
the  oflicer  rendering  any  judgment  in  the  matter.  lie  holds  the  property, 
as  he  does  the  prisoner,  to  await  and  subject  to  the  order  of  the  court." 
Emery,  J.,  in  Thatcher  v.  Weeks,  79  Me.  548,  11  Atl.  599  (ISST). 

20  Part  of  this  case  is  omitted. 

Accord:  State  v.  Oliver,  2  Houst.  (Del.)  5S5  (1855);  State  v.  Mooring.  115 
N.  C.  709,  20  S.  E.  182  (1894).  Even  though  the  occuptint  know  the  i)uri)nse 
for  which  the  officer  comes.  Hall  v.  Hall,  6  Gill  &  J.  (Md.)  386  (1S34).  But 
see  Conmionwealth  v.  Beynolds,  120  Mass.  190,  21  Am.  Rep.  510  (1870). 
The  officer  does  not  become  a  trespasser  ab  initio  if  the  accused  is  in  fact 
not  in  the  house,  even  though  he  is  notified  of  this  fact  by  persons  iu  the 
bouse.     State  v.  Mooring,  supra. 

The  officer  need  not  inform  the  occupant  ■vj'ho  the  person  sought  is,  unless 
such  information  is  demanded.  Commonwealth  v.  Reynolds,  120  Mass.  190, 
21  Am.  Rep.  510  (187G). 

It  seems  that  the  right  to  break  doors  when  the  arrest  is  on  a  warrant 
extends  to  arrests  for  misdemeanors  as  well  as  felonies.  State  v.  Shaw,  1 
Root  (Conn.)  134  (1789);  State  v.  Mooring,  supra.  Contra:  Commonwealth 
V.  Supt.  Co.  Prison,  5  Pa.  Dist.  R.  r,P,~>  (1800). 

Aerest  WiTuouT  Wakrant.— Whether  doors  may  be  broken  in  the  arrest 


Ch.  4)  EXTRADITION 

CHAPTER  IV 
EXTRADITION 


S7 


STATE  OF  KENTUCKY  v.  DENNISON. 

(Supreme  Court  of  the  United  States,  ISGO.     24  How.  G6,  16  L.  Ed.  717.) 

A  motion  was  made  in  behalf  of  the  state  of  Kentucky,  by  the  direc- 
tion and  in  the  name  of  the  Governor  of  the  state,  for  a  rule  on  the 
Governor  of  Ohio  to  show  cause  why  a  mandamus  should  not  be  is- 
sued by  this  court,  commanding  him  to  cause  Willis  Lago,  a  fugitive 
from  justice,  to  be  delivered  up,  to  be  removed  to  the  stat^  of  Ken- 
tucky, having  jurisdiction  of  the  crime  with  which  he  is  char- 
ged.^    *     *     * 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court.  *  *  • 
This  brings  us  to  the  examination  of  the  clause  of  the  Constitution 
which  has  given  rise  to  this  controversy.  It  is  in  the  following  words : 
"A  person  charged  in  any  state  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  state,  shall,  on  de- 
mand of  the  executive  authority  of  the  state  from  which  he  fled,  N^ 
delivered  up,  to  be  removed  to  the  state  having  jurisdiction  of  th'- 
crime." 

Looking  to  the  language  of  the  clause,  it  is  difficult  to  comprehem' 
how  any  doubt  could  have  arisen  as  to  its  meaning  and  construction 
The  words,  "treason,  felony,  or  other  crime,"  in  their  plain  and  obvi- 
ous import,  as  well  as  in  their  legal  and  technical  sense,  embrace  every 
act  forbidden  and  made  punishable  by  a  law  of  the  state.  The  word 
"crime"  of  itself  includes  every  offense,  from  the  highest  to  the  lowest 
in  the  grade  of  offenses,  and  includes  what  are  called  "misdemeanors." 
as  well  as  treason  and  felony.  4  Bl.  Com.  5,  6,  and  note  3,  Wendall's 
edition. 

But  as  the  word  "crime"  would  have  included  treason  and  felony, 
without  specially  mentioning  those  oft'enses,  it  seems  to^  be  supposed 
that  the  natural  and  legal  import  of  the  word,  by  associating  it  with 
those  offenses,  must  be  restricted  and  confined  to  offenses  already 
known  to  the  common  law  and  to  the  usage  of  nations,  and  regarded 
as  oft'enses  in  every  civilized  community,  and  that  they  do  not  extend 

of  a  felon,  without  a  warrant,  see  2  Hawk.  P.  C.  c.  14 ;  1  Hale,  P.  C.  5S3 : 
4  Black.  Coram.  292. 

Since  a  court  has  no  jurisdiction  over  foreign  sovereigns,  their  ambassa- 
dors, diplomatic  agents,  and  persons  belonging  to  their  suites,  such  persons 
are  exempt  from  arrest.  See  Dupont  v.  Pichon,  4  Dall.  321.  1  L.  Ed.  S.j1 
(1805);  Musurus  Bey  v.  Gadban,  [1S94]  1  Q.  B.  So3 ;  Rev.  St.  §§  40C2-40G5 
[U.  S.  Corny.  St.  1901,  pp.  27G0  27(31). 

1  Part  of  this  case  is  omitted. 


'AS  EXTIIADITIOX  (Ch.  4 

to  acts  made  offenses  by  local  statutes  growing  out  of  local  circum- 
stances, nor  to  offenses  against  ordinary  police  regulations.  This  is 
one  of  the  grounds  upon  which  the  Governor  of  Ohio  refused  to  de- 
liver Lago,  under  the  advice  of  the  Attorney  General  of  that  state. 

But  this  inference  is  founded  upon  an  obvious  mistake  as  to  the 
purpose  for  which  the  words  "treason  and  felony"  were  introduced. 
They  were  introduced  for  the  purpose  of  guarding  against  any  restric- 
tion of  the  word  "crime,"  and  to  prevent  this  provision  from  being 
construed  by  the  rules  and  usages  of  independent  nations  in  compacts 
for  delivering  up  fugitives  from  justice.  According  to  these  usages, 
even  where  they  admitted  the  obligation  to  deliver  the  fugitive,  per- 
sons who  fled  on  account  of  political  offenses  were  almost  always  ex- 
cepted, and  the  nation  upon  which  the  demand  is  made  also  uniformly 
claims  and  exercises  a  discretion  in  weighing  the  evidence  of  the 
crime,  and  the  character  of  the  offense.  The  policy  of  different  na- 
tions, in  this  respect,  with  the  opinions  of  eminent  writers  upon  public 
law,  are  collected  in  Wheaton  on  the  Law  of  Nations,  171,  Foelix,  312, 
and  Martin  (Verge's  Ed.)  182.  And  the  English  government,  from 
which  we  have  borrowed  our  general  system  of  law  and  jurisprudence, 
has  always  refused  to  deliver  up  political  off'enders  who  had  sought 
an  asylum  within  its  dominions.  And  as  the  states  of  this  Union,  al- 
though united  as  one  nation  for  certain  specified  purposes,  are  yet, 
so  far  as  concerns  their  internal  government,  separate  sovereignties, 
independent  of  each  other,  it  was  obviously  deemed  necessary  to  show, 
by  the  terms  used,  that  this  compact  was  not  to  be  regarded  or  con- 
strued as  an  ordinary  treaty  for  extradition  between  nations  altogether 
independent  of  each  other,  but  was  intended  to  embrace  political  of- 
fenses against  the  sovereignty  of  the  state,  as  well  as  all  other  crimes. 
And,  as  treason  was  also  a  "felony"  (4  Bl.  Com.  94),  it  was  neces- 
sary to  insert  those  words,  to  show  in  language  that  could  not  be  mis- 
taken, that  political  offenders  were  included  in  it.    *■   *    * 

The  argument  on  behalf  of  the  Governor  of  Ohio,  which  insists  up- 
on excluding  from  this  clause  new  oft'enses  created  by  a  statute  of  the 
state,  and  growing  out  of  its  local  institutions,  and  which  are  not  ad- 
mitted to  be  offenses  in  the  state  where  the  fugitive  is  found,  nor  so 
regarded  by  the  general  usage  of  civilized  nations,  would  render  the 
clause  useless  for  any  practical  purpose.  For  where  can  the  line  of 
division  be  drawn  with  anything  like  certainty?  Who  is  to  mark  it? 
The  Governor  of  the  demanding  state  would  probably  draw  one  line, 
and  the  Governor  of  the  other  state  another.  And,  if  they  differed, 
who  is  to  decide  between  them?  Under  such  a  vague  and  indefinite 
construction,  the  article  would  not  be  a  bond  of  peace  and  union,  but 
a  constant  source  of  controversy  and  irritating  discussion.  It  would 
have  been  far  better  to  omit  it  altogether,  and  to  have  left  it  to  the 
comity  of  the  states,  and  their  own  sense  of  their  respective  interests, 
than  to  have  inserted  it  as  conferring  a  right,  and  yet  defining  that 
right  so  loosely  as  to  make  it  a  never-failing  subject  of  dispute  and 
ili  will.     *     *     * 


Ch.  4)  EXTIJADITION  39 

Looking,  therefore,  to  the  words  of  the  Constitution— to  the  obvious 
policy  and  necessity  of  this  provision  to  preserve  harmony  between 
states,  and  order  and  law  within  their  respective  borders,  and  to  its 
early  adoption  by  the  colonies,  and  then  by  the  confederated  states, 
whose  mutual  interest  it  was  to  give  each  other  aid  and  support  when- 
ever it  was  needed — ):he  conclusion  is  irresistible  that  this  compact  in- 
grafted in  the  Constitution  included,  and  was  intended  to  include,  ev- 
ery offense  made  punishable  by  the  law  of  the  state  in  which  it  was 
committed,  and  that  it  gives  the  right  to  the  executive  authority  of 
the  state  to  demand  the  fugitive  from  the  executive  authority  of  the 
state  in  which  he  is  found;  that  the  right  given  to  "demand"  implies 
that  it  is  an  absolute  right;  and  it  follows  that  there  must  be  a  cor- 
relative obligation  to  deliver,  without  any  reference  to  the  character 
of  the  crime  charged,  or  to  the  policy  or  laws  of  the  state  to  which  the 
fugitive  has  fled.    *    *    * 

The  question  which  remains  to  be  examined  is  a  grave  and  import- 
ant one.  When  the  demand  was  made,  the  proofs  required  by  the  act 
of  1793  to  support  it  were  exhibited  to  the  Governor  of  Ohio,  duly 
certified  and  authenticated;  and  the  objection  made  to  the  validity 
of  the  indictment  is  altogether  untenable.  Kentucky  has  an  undoubted 
right  to  regulate  the  forms  of  pleading  and  process  in  her  own  courts, 
in  criminal  as  well  as  civil  cases,  and  is  not  bound  to  conform  to  those 
of  any  other  state.  And  whether  the  charge  against  Lago  is  legally 
and  sufficiently  laid  in  this  indictment  according  to  the  laws  of  Ken- 
tucky is  a  judicial  question  to  be  decided  by  the  courts  of  the  state, 
and  not  by  the  executive  authority  of  the  state  of  Ohio. 

The  demand  being  thus  made,  the  act  of  Congress  declares  that  "it 
shall  be  the  duty  of  the  executive  authority  of  the  state"  to  cause  the 
fugitive  to  be  arrested  and  secured,  and  delivered  to  the  agent  of  the 
demanding  state.  The  words,  "it  shall  be  the  duty,"  in  ordinary  legis- 
lation, imply  the  assertion  of  the  power  to  command  and  to  coerce 
obedience.  But  looking  to  the  subject-matter  of  this  law,  and  the  re- 
lations which  the  United  States  and  the  several  states  bear  to  each 
other,  the  court  is  of  opinion  the  words  "it  shall  be  the  duty"  were  not 
used  as  mandatory  and  compulsory,  but  as  declaratory  of  the  moral 
duty  which  this  compact  created,  when  Congress  had  provided  the 
mode  of  carrying  it  into  execution.  The  act  does  not  provide  any 
means  to  compel  the  execution  of  this  duty,  nor  inflict  any  punish- 
ment for  neglect  or  refusal  on  the  part  of  the  executive  of  the  state ; 
nor  is  there  any  clause  or  provision  in  the  Constitution  which  arms  the 
government  of  the  United  States  with  this  power.  Indeed,  such  a 
power  would  place  every  state  under  the  control  and  dominion  of  the 
general  government,  even  in  the  administration  of  its  internal  con- 
cerns and  reserved  rights.  And  we  think  it  clear  that  the  federal  gov- 
ernment, under  the  Constitution,  has  no  power  to  impose  on  a  state 
officer,  as  such,  any  duty  whatever,  and  compel  him  to  perform  it ;  for, 
if  it  possessed  this  power,  it  might  overload  the  officer  with  duties 


40  EXTRADITION  (Ch.  4 

which  would  fill  up  all  his  time,  and  disable  him  from  performing  his 
obligations  to  the  state,  and  might  impose  on  him  duties  of  a  char- 
acter incompatible  with  the  rank  and  dignity  to  which  he  was  elevated 
by  the  state.    *    *     * 

And  it  would  seem  that  when  the  Constitution  was  framed,  and 
when  this  law  was  passed,  it  was  confidently  believed  that  a  sense  of 
justice  and  of  mutual  interest  would  insure  a  faithful  execution  of  this 
constitutional  provision  by  the  executive  of  every  state,  for  every  state 
had  an  equal  interest  in  the  execution  of  a  compact  absolutely  essen- 
tial to  their  peace  and  well-being  in  their  internal  concerns,  as  well 
as  members  of  the  Union.  Hence  the  use  of  the  words  ordinarily  em- 
ployed when  an  undoubted  obligation  is  required  to  be  performed,  "it 
shall  be  his  duty." 

But  if  the  Governor  of  Ohio  refuses  to  discharge  this  duty,  there  is 
no  power  delegated  to  the  general  government,  either  through  the  ju- 
dicial department  or  any  other  department,  to  use  any  coercive  means 
to  compel  him. 

And  upon  this  ground  the  motion  for  the  mandamus  must  be  over- 
ruled." 


In  re  MOHR. 
(Supreme  Court  of  Alabama,"  1SS3.    73  Ala.  503.  49  Am.  Rep.  63.) 

SoMERViLLS,  J.^  The  purpose  of  the  present  application  is  to  va- 
cate the  action  of  the  probate  judge,  discharging  one  Alexander  Mohr 
from  alleged  illegal  custody,  on  his  petition  for  the  writ  of  habeas 
corpus.  The  return  to  the  writ  showed  that  the  petitioner  was  held 
in  the  custody  of  the  relator,  Frederick  Centner,  as  agent  of  the  state 
of  Pennsylvania,  under  a  warrant  of  arrest  issued  by  authority  of  the 
Governor  of  Alabama,  pursuant  to  a  requisition  from  the  Governor 
of  the  former  state,  demanding  his  extradition  as  a  fugitive  from  jus- 
tice. The  crime  charged  is  that  of  obtaining  goods  by  false  pretenses. 
The  probate  judge  permitted  evidence  to  be  introduced,  showing  that 
the  prisoner  was  not  in  the  state  of  Pennsylvania  at  the  time  of  the 
commission  of  the  alleged  offense,  and  had  never  been  there  since ; 
that  the  goods  v/ere  obtained  by  purchase  from  an  agent  of  the  prose- 
cutor in  the  state  of  New  York,  to  whom  the  false  representations,  if 
any,  were  made;  and  that  the  petitioner  had  never  fled  from  the  state 
of  Pennsylvania,  and  was  not  a  fugitive  from  justice.  It  is  claimed 
that  the  state  courts  have  no  jurisdiction  of  the  case,  and,  if  so,  that 
the  probate  judge  had  no  jurisdiction  to  go  behind  the  warrant  of  the 
executive,  to  investigate  the  question  as  to  whether  or  not  the  prisoner 

*  "The  power  to  surrender  fujritives.  who,  having  committed  offenses  In  a 
forcifin  country,  have  fled  to  this  for  shelter,  belongs,  under  the  Constit'.ition 
of  the  United  States,  exclusively  to  the  foderal  Rovornmeut."  Taney,  C.  J., 
In  Holmes  v.  Jennison,  39  U.  S.  579,  10  L.  Ed.  579  (1S4U). 

8  I'art  of  this  case  is  omitted. 


Ch.  4)  EXTRADITION  41 

was  in  fact  a  fugitive  from  justice,  and  that  the  proceedings  before 
him  were  coram  non  judice  and  void.    *    *    * 

Is  it  permissible  to  show  that  the  case  is  not  one  coming  within  the 
provisions  of  the  Constitution  and  act  of  Congress,  because  the  party 
charged  is  not  a  fugitive  from  justice,  having  committed  the  alleged 
offense,  if  2.t  all,  only  constructively  while  outside  of  the  territorial 
jurisdiction  of  the  demanding  state?  Or  are  the  papers  in  the  case,  in 
connection  with  the  warrant  of  arrest  issued  by  the  Governor  of  this 
state,  to  be  regarded  as  importing  absolute  verity  in  this  particular, 
so  as  to  be  incapable  of  contradiction? 

The  statute  provides  that,  if  the  return  to  the  writ  of  habeas  corpus 
shows  that  the  petitioner  is  "in  custody  for  any  public  offense,  com- 
mitted in  any  other  state  or  territory,  for  which,  by  the  Constitution 
and  laws  of  the  United  States,  he  should  be  delivered  up  to  the  au- 
thority of  such  state  or  territory,"  he  should  be  remanded.  Code  1ST 6, 
§  4957.  This  is,  perhaps,  merely  declaratory  of  what  the  law  would 
require  in  the  absence  of  the  statute.  The  power  claimed  by  the  pris- 
oner is  the  right  to  show  that  his  case  is  one  outside  of  the  class  in- 
tended to  be  covered  by  the  Constitution  and  laws  of  the  United  States. 

The  authorities  are  not  in  harmony  as  to  what  questions  can  be  re- 
viewed by  habeas  corpus  in  cases  of  extradition.  It  seems  very  cer- 
tain that  there  is  no  power  to  go  behind  the  indictment  or  affidavit, 
with  the  view  of  investigating  the  question  of  the  prisoner's  guilt  or 
innocence.  In  re  Clark,  9  Wend.  (N.  Y.)  212.  He  cannot  be  put  upon 
trial  for  the  crime  with  which  he  is  charged,  nor  can  any  inquiry  be 
made  into  either  the  merits  of  his  defense,  or  mere  formal  defects  in 
the  charge.  These  inquiries  are  reserved  for  the  courts  of  the  demand- 
ing state,  having  jurisdiction  of  the  offense.  People  v.  Brady,  56  N. 
Y.  182 ;  Robinson  v.  Flanders,  29  Ind.  10.  Congress  has  seen  fit  to 
adopt  special  legislation  regulating  this  phase  of  the  evidence  in  the 
case.  The  act  of  1793  makes  conclusive  the  production  of  a  copy  of 
the  indictment  found,  or  an  affidavit  made  before  a  magistrate  of  the 
demanding  state,  "charging  the  person  demanded  with  having  com- 
mitted treason,  felony,  or  other  crime,"  certified  as  authentic  by  the 
Governor  of  such  state.  Rev.  St.  U.  S.  §  5278  (U.  S.  Comp.  St.  1901,. 
p.  3597).  These  papers,  if  in  due  form,  are  made  conclusive  evidence 
of  the  guilt  of  the  accused,  when  assailed  on  habeas  corpus.  It  may 
be  considered,  therefore,  as  the  settled  doctrine  of  the  courts,  that  a 
prima  facie  case  is  made,  when  the  return  to  the  writ  of  habeas  corpus 
shows:  (1)  A  demand  or  requisition  for  the  prisoner,  made  by  the 
executive  of  another  state,  from  which  he  is  alleged  to  have  fled;  (2) 
a  copy  of  the  indictment  found,  or  affidavit  made  before  a  magistrate, 
charging  the  alleged  fugitive  with  the  commission  of  the  crime,  cer- 
tified as  authentic  by  the  executive  of  the  state  making  the  demand ; 
(3)  the  warrant  of  the  Governor  authorizing  the  arrest.  Where  these 
facts  are  made  to  appear  by  papers  regular  on  their  face,  there  is  a 
weight  of  authority  holding  that  the  prisoner  is  prima  facie  under  legal 


42  EXTRADITION  (Ch.  4 

restraint.  Spear's  Law  of  Extrad.  208-303 ;  Matter  of  Clark,  9  Wend. 
(N.  Y.)  212;  State  v.  Schlemn,  4  Har.  (Del.)  577;  In  re  Hooper,  52 
Wis.  699,  58  N.  W.  741 ;  People  v.  Brady,  56  N.  Y.  182 ;  Bump's 
Notes  of  Const.  Dec.  295-297;   Johnston  v.  Riley,  13  Ga.  97. 

IMany  of  the  cases  hold  that  the  warrant  of  the  Governor,  reciting 
these  jurisdictional  facts,  is  itself  prima  facie  sufficient  to  show  that  all 
the  necessary  prerequisites  have  been  complied  with  prior  to  its  issue 
by  him,  although  as  to  this  proposition  there  is  a  conflict  of  opinion. 
Davis'  Case,  122  Mass.  324 ;  Kingsbury's  Case,  106  Mass.  223 ;  Rob- 
inson V.  Flanders,  29  Ind.  10;  Hartman  v.  Aveline,  63  Ind.  344,  30 
Am.  Rep.  217.  Which  of  these  is  the  correct  view  we  need  not  de- 
cide, as  all  the  proper  papers  in  due  form  are  set  out  in  the  return 
made  to  the  writ  by  the  respondent,  Centner,  who  is  the  relator  in 
this  proceeding. 

It  is  obvious  that  the  extradition  clause  of  the  federal  Constitution 
has  reference  only  to  a  specified  class,  and  not  to  all  criminals.  Its 
language  is :  A  person  charged  with  any  crime  "who  shall  flee  from 
justice  and  be  found  in  another  state."  Article  4,  §  2.  The  act  of 
Congress  is  more  emphatic,  if  possible,  in  describing  such  person  as 
an  actual  fugitive,  characterizing  him  as  one  who  "has  fled,"  and  the 
state  in  which  he  is  found  as  the  state  to  which  he  "has  fled."  Rev. 
St.  U.  S.  §  5278  (U.  S.  Comp.  St.  1901,  p.  3597).  It  may  be  con- 
sidered clear,  therefore,  without  any  conflict  of  authority,  that  the 
Constitution  and  laws  of  Congress  do  not  provide  for  the  extradition 
of  any  persons  except  those  who  may  have  fled  from  or  left  the  de- 
manding state  as  fugitives  from  the  justice  of  that  state.  Whart.  Cr. 
PI.  &  Pr.  (8th  Ed.)  31,  and  cases  cited;  Spear's  Law  of  Extrad.  273, 
310-316,  "The  oft'ense,"  says  Mr.  Cooley,  "must  have  been  actually 
committed  within  the  state  making  the  demand,  and  the  accused  must 
have  fled  therefrom."     Cooley's  Const.  Lim.  (5th  Ed.)   16,  note  1. 

There  is  a  difference  of  opinion  as  to  what  must  be  the  exact  nature 
of  this  flight  on  the  part  of  the  criminal,  but  the  better  view,  perhaps, 
is  that  any  person  is  a  fugitive,  within  the  purview  of  the  Constitu- 
tion, "who  goes  into  a  state,  commits  a  crime,  and  then  returns  home." 
Kingsbury's  Case,  106  Mass.  223 ;  Hurd  on  Hab.  Corp.  606.  In  the 
Case  of  Voorhees,  32  N.  J.  Law,  141,  he  was  characterized  as  one 
"who  commits  a  crime  in  a  state,  and  withdraws  himself  from  such 
jurisdiction."  This  point,  however,  we  need  not  decide,  as  it  is  shown 
that  the  prisoner,  Mohr,  has  never  been  into  the  jurisdiction  of  the 
demanding  state  since  the  commission  of  the  alleged  crime.  He  can- 
not, therefore,  be  said  to  be  a  fugitive  from  the  justice  of  that  state. 

It  is  clear  to  our  mind  that  crimes,  which  are  not  actually,  but  are 
only  constructively,  committed  within  the  jurisdiction  of  the  demand- 
ing state,  do  not  fall  within  the  class  of  cases  intended  to  be  embraced 
by  the  Constitution  or  act  of  Congress.  Such  at  least  is  the  rule,  un- 
less the  criminal  afterwards  goes  into  such  state  and  departs  from  it, 
thus  subjecting  himself  to  the  sovereignty  of  its  jurisdiction.  The  rea- 
son is,  not  that  the  jurisdiction  to  try  the  crime  is  lacking,  but  that 


Ch.  1)  EXTRADITION  43 

no  one  can  in  any  sense  be  alleged  to  have  "fled"  from  a  state,  into 
the  domain  of  whose  territorial  jurisdiction  he  has  never  been  cor- 
porally present  since  the  commission  of  the  crime.  And  only  this 
class  of  persons  are  embraced  within  either  the  letter  or  spirit  of  the 
Constitution,  the  purpose  of  which  was  to  make  the  extradition  of 
fugitive  criminals  a  matter  of  duty,  instead  of  mere  comity  between 
the  states.  The  language  of  the  Constitution  and  the  law  of  Congress 
are  entirely  free  from  ambiguity  on  this  point,  being  too  obvious  to 
admit  of  judicial  construction ;  and  the  authorities  are  uniform  in 
adoption  of  this  view  as  to  its  manifest  meaning.  Whart.  Cr,  PI.  & 
Pr.  (8th  Ed.)  §  31 ;  Spear's  Law  of  Extrad.  309-316  ;  Veorhees'  Case, 
32  N.  J.  Law,  147 ;  Kingsbury's  Case,  106  Mass.  223 ;  Ex  parte  Smith, 
3  McLean,  121,  Fed.  Cas.  No.  12,968;  Wilcox  v.  Nolze,  34  Ohio  St. 
520. 

We  are  of  opinion  that  it  was  never  intended  by  Congress,  in  their 
enactment  of  the  law  of  1793,  that  the  finding  of  the  Governor  of  a 
state  that  one  is  a  fugitive  from  justice  should  be  conclusive  evidence 
of  that  fact,  incapable  of  contradiction  by  facts  showing  the  contrary. 
It  is  an  important  feature  of  the  law,  throwing  some  light  upon  its 
proper  construction,  that  while  it  expressly  prescribes  the  mode  by 
which  evidence  of  the  crime  charged  shall  be  authenticated,  it  nowhere 
prescribes  how  the  fact  that  he  is  a  fugitive  from  justice  shall  be  es- 
tablished. There  seems  to  us  to  have  been  a  good  and  sufficient  rea- 
son for  this  distinction.  Nothing  was  more  proper  than  the  policy 
of  precluding  the  fugitive  from  disputing  the  certified  records  from 
the  courts  of  a  sister  state,  in  view  of  the  constitutional  requirement 
that  "full  faith  and  credit"  shall  be  given  in  each  state  to  "the  records 
and  judicial  proceedings  of  every  other  state."    Const.  U.  S.  art.  4,  §  1. 

But  no  such  reason  applies  to  the  implication  of  the  defendant's  be- 
ing a  fugitive,  because  he  is  found  in  another  state  than  the  one  in 
whose  courts  the  charge  is  pending.  It  may  be  asserted  that  it  was 
within  the  power  of  the  Governor  to  investigate  this  fact  before  he  is- 
sued the  warrant,  so  as  to  satisfy  himself  of  its  truth.  Perhaps  this 
is  the  correct  view ;  but  this  duty  must,  in  its  very  nature,  be  discre- 
tionary. In  practice,  the  fact  of  the  criminal's  flight  is  usually  shown 
by  affidavit;  but  this  cannot  be  regarded  as  conclusive  upon  any  prin- 
ciple known  to  us,  in  the  absence  of  statutory  regulation  so  declar- 
ing the  law.  The  better  view  seems  to  us  to  be  that  one  of  the  pur- 
poses of  pretermitting  express  congressional  legislation  on  this  point 
was  to  refer  the  matter  to  executive  determination,  subject  to  review 
by  habeas  corpus  in  the  courts  in  all  proper  cases.  The  papers  being 
regular,  the  Governor  has  a  right  to  suppose  that  a  prima  facie  case 
exists  for  a  warrant,  and  the  safer  practice  would  seem  to  be  that 
the  accused  should  be  remitted  to  the  courts  to  establish  matters  of 
defense  aliunde  the  record.     Especially  is  this  true  in  doubtful  cases. 

As  we  have  said,  the  grounds  of  imprisonment  in  this  class  of  cases 
are  constantly  reviewed  by  habeas  corpus,  in  the  state  courts.  Whart. 
Cr,  PI,  &  Pr.  §  35,     It  is  just  as  material  to  show  that  the  prisoner 


44 


EXTRADITION  (Ch.  4 


does  not  come  within  the  law,  on  the  ground  that  he  has  never  fled 
from  the  demanding  state,  as  on  the  ground  that  he  is  not  the  identical 
person  intended  to  be  indicted,  or  that  there  is  no  authenticated  copy 
of  the  indictment,  or  other  charge  against  him.  All  of  these  facts 
must  concur,  before  the  law  authorizes  the  requisition  to  be  made, 
or  the  warrant  of  arrest  to  issue.  They  are  jurisdictional  facts,  in  the 
absence  of  which  the  prisoner  is  excluded  from  the  operation  and  in- 
fluence of  the  law,  and  no  extradition  can  be  constitutionally  author- 
ized by  congressional  legislation.  Whart.  Cr.  PL  &  Pr.  (8th  Ed.)  §§ 
31,  34,  35. 

This  view  is  supported  by  the  best-considered  cases,  and  parol  evi- 
dence has  been  often  admitted  by  the  courts,  in  proceedings  by  habeas 
corpus,  for  the  purpose  of  showing  that  the  warrant  of  the  Governor 
was  improvidently  issued  under  the  mistaken  belief  that  the  prisoner 
was  a  fugitive.     *    *    * 

We  are  of  opinion  that  the  probate  judge  did  not  err  in  discharging 
the  petitioner,  and  that  it  was  competent  for  him  to  hear  oral  evi- 
dence, in  order  to  establish  the  fact  that  the  petitioner  was  not  a  fugi- 
tive from  justice. 

Any  other  conclusion  than  this  would  establish  a  doctrine  very  dan- 
gerous to  the  liberty  of  the  citizen.  It  would  greatly  impair  the  ef- 
ficacy of  the  proceeding  of  habeas  corpus,  which  has  often  been  char- 
acterized as  the  great  writ  of  liberty,  and  may  be  regarded,  not  less 
than  the  right  of  trial  by  jury,  as  one  of  the  chief  corner  stones  in  the 
structure  of  our  judiciary  system.  It  might  justly  be  considered  as 
alarming  to  announce  that  a  writ,  which  has  so  frequently  been  used 
for  centuries  past  to  prevent  the  encroachment  of  kings  upon  popular 
liberty,  is  inadequate  for  the  just  purpose  for  which  it  has  been  in- 
voked in  this  case. 

The  application  made  by  the  relator  must  be  denied.* 

Brickell,  C.  J.,  dissents. 

*  See,  also,  Illinois  v.  Pease,  207  U.  S.  100,  28  Sup.  Ct.  58,  52  L.  Ed.  121 
(1007). 

"Whether  an  extraditable  crime  has  l)cen  committed  is  a  question  of  mixed 
law  and  fact,  but  chiefly  of  fact,  and  the  judgment  of  the  magistrate  ren- 
dered in  good  faith  on  le.;;al  evidence  that  the  accused  is  guilty  of  the  act 
charged,  and  that  It  constitutes  an  extraditable  crime,  cannot  be  reviewed 
on  the  weight  of  evidence,  and  is  final  for  the  purpose  of  the  preliminary 
examination  unless  palpably  erroneous  In  law."  Fuller,  C.  J.>  in  Ornelas  r. 
Ruiz,  IGl  U.  S.  500,  16  Sup.  Ct.  691,  40  L.  Ed.  7S4  (189G). 

"It  is  not  necessary  that  the  party  charged  should  have  left  the  state  In 
which  the  crime  is  alleged  to  have  been  connnitted,  after  an  indictment  found, 
or  for  the  purpose  of  avoiding  a  prosecution  anticipated  or  begun,  but  simply 
that,  having  within  a  state  committed  that  which  by  its  laws  constitutes  a 
,  crime,  when  he  is  sought  to  be  subjected  to  its  criminal  process  to  answer  for 
his  o*fense,  he  has  left  its  jurisdiction,  and  is  found  within  the  territory  of 
another."  Matthews,  J.,  in  Roberts  v.  Reilly,  116  U.  S.  97,  6  Sup.  Ct.  300. 
29  L.   Ed.  544  (1885). 

Before  the  fugitive  can  be  lawfully  delivered  up,  it  must  appear  in  the 
proceedings  for  extradition  that  he  has  been  charged  with  the  commission  of 
the  crime  either  by  indictment  or  affidavit.  Rev.  St.  U.  S.  §  5278  (U.  S.  Comp. 
St.  1901,  p.  3597).     A  charge  l-y  information  is  not  sufficient.     Ex  parte  Hart, 


Cll.  5)  PROCEEDINGS   BEFORE    MAGISTRATE  45 

CHAPTER  V 

PROCEEDINGS  BEFORE  MAGISTRATE 


WINDHAM  V.  CLERE. 

(Court  of  Queen's  Beuch,  15SS.     Ci-o.  Eliz.  130.) 

Action  upon  the  case.  And  declares,  that  the  defendant  was  a  Jus- 
tice of  peace  in  the  county  of  N.  And  whereas  the  plaintiff  was  a 
loyal  subject,  etc.  the  defendant  maliciously  intending  to  deprive  him 
of  his  good  name  and  fame,  did  direct  his  warrant,  and  shews  it  in 
certainty,  etc.  to  divers  constables  to  attach  him;  alleging  he  was  ac- 
cused of  the  stealing  of  the  horse  of  A.  B.  by  reason  whereof  he  was 
arrested,  till  he  put  in  bond  to  appear,  etc.  ubi  revera  he  was  never 
accused,  nor  did  steal  the  horse,  and  the  defendant  did  know  him  to 
be  guiltless;  by  reason  whereof  he  was  greatly  discredited.  Upon 
non  culp'  pleaded,  it  was  found  for  the  plaintiff.  And  it  was  held  by 
CivENCH  and  Gawdy,  the  action  was  maintainable.  If  a  man  be  ac- 
cused to  a  justice  of  peace  for  an  offense,  for  which  he  causes  him  to 
be  arrested  by  his  warrant,  although  the  accusation  be  false,  yet  he 
is  excusable;  but  if  the  party  be  never  accused,  but  the  justice  of  his 
malice  and  own  head  cause  him  to  be  arrested,  it  is  otherwise.  And 
they  commanded  judgment  to  be  given  for  the  plaintiff.    14  Hen.  VIII. 


BLODGETT  V.  RACE. 

(Supreme  Court  of  New  York,  1ST9.    18  Hun,  132.) 

BoCKES,  J.^  .A  complaint  in  writing,  charging  a  criminal  offense, 
although  on  information  and  belief  only  as  to  the  person  suspected 
of  having  committed  it,  is  sufficient  to  authorize  an  investigation  be- 
fore a  magistrate  by  the  examination  of  witnesses.  The  magistrate 
on  such  complaint  may  issue  subpoenas  for  witnesses,  and  has  jurisdic- 
tion of  the  subject-matter  of  the  offence  charged  to  have  been  com- 
mitted, and  may  compel  the  attendance  of  witnesses  by  attachment  in 
case  of  disobedience  of  the  subpoena.     People  v.  Hicks,  15  Barb.  153. 

63  Fed.  249,  11  C.  O.  A.  165.  28  L.  R.  A.  SOI  (1S94).  Contra :  In  re  Hooper. 
52  Wis.  699,  58  N.  W.  741  (ISSl). 

One  convicted  of  an  offense  against  a  state,  who  before  the  expiration  of 
his  sentence  is  delivered  to  the  federal  authorities  to  serve  out  a  prior  sen- 
tence, Is,  at  the  end  of  that  sentence,  a  "fugitive  from  ju^^tice."  and  can  be 
taktn  by  the  state.  People  v.  Benham,  71  Misc.  Rep.  345,  128  N.  Y.  Supp.  010 
(1911). 

1  The  statement  of  facts  is  omitted. 


46  PIIOCEEDIXGS    BEFORE    MAGISTRATE  (Ch.  5 

But  before  a  warrant  can  lawfully  issue  for  the  arrest  of  the  offender 
the  magistrate  must  have  some  evidence  of  his  guilt.  Facts  and  cir- 
cumstances, stated  on  information  and  belief  only,  without  giving  any 
sufficient  grounds  on  which  to  base  the  belief,  are  insufficient  to  con- 
fer jurisdiction  as  to  the  person.  The  magistrate  must  have  evidence 
of  probable  cause,  both  as  to  the  commission  of  the  offense  and  the 
guilt  of  the  offender,  before  he  can  have  jurisdiction  to  cause  the  ar- 
rest. Comfort  v.  Fulton,  39  Barb.  56 ;  Vredenburgh  v.  Hendricks,  17 
Barb.  179  ;  Wilson  v.  Robinson,  6  How.  Prac.  110  ;  Pratt  v.  Bogardus, 
49  Barb.  89 ;  People  v.  Hicks,  15  Barb.  153 ;  Wells  v.  Sisson,  1-1  Hun, 
267 ;  Carl  v.  Ayers,  53  N.  Y.  14.  It  is  laid  down  in  Waterman's  Notes 
to  Archbold's  Criminal  Practice  and  Pleadings  (vol.  1,  20,  marginal 
page  31)  that  a  warrant  cannot  be  issued  against  one,  if  his  guilt  ap- 
pears only  from  hearsay  and  mere  rumor,  but  that  a  case  of  probable 
guilt,  on  the  part  of  the  accused,  must  be  made  out.  If  facts  and  cir- 
cumstances be  stated,  sufficient  to  call  for  judicial  determination,  the 
magistrate  will  be  protected  in  his  action,  and  this,  although  he  might 
err  in  judgment.  In  such  case  he  is  to  be  fully  protected  and  the  er- 
ror can  only  be  made  available  on  writ  of  error  or  appeal  in  the  ac- 
tion, or  proceeding  in  which  the  error  occurred. 

As  to  the  case  in  hand,  it  seems  that  the  warrant  was  issued  on  less 
proof  even  than  information  or  belief  as  regards  the  plaintiff.  It  was 
issued  on  an  allegation  only  of  "suspicion  and  belief"  as  to  the  plain- 
tiff's guilt.  No  fact  or  circumstance  whatever  was  stated  to  support 
the  suspicion,  even  much  less  to  support  a  conclusion  of  probable  cause 
against  him.  The  warrant  was  without  jurisdiction,  hence  aft'orded 
the  defendant  no  protection  against  the  charge  of  an  illegal  arrest. 
It  is  not  necessary  here  to  hold  that  the  defendant  had  no  ground  for 
committing  the  plaintiff  after  the  open  public  examination  was  had. 
It  is  quite  possible,  and  I  think  it  must  be  assumed,  that  there  was 
sufficient  evidence  given  before  him  to  uphold  his  conclusion  to  com- 
mit. But  we  do  not  pass  upon  that  question  here.  The  original  ar- 
rest, directed  by  the  defendant,  was  unauthorized,  and  the  nonsuit 
herein  was  therefore  improperly  granted.  This  conclusion  renders  it 
unnecessary  to  examine  other  questions  raised  in  the  case.  Perhaps 
it  should  be  further  remarked  that  the  case,  as  presented  on  this  ap- 
peal, does  not  appear  to  be  one  of  serious  enormity.  The  good  faith 
of  the  defendant,  in  issuing  the  warrant,  is  not  denied.  The  plaintiff 
was  in  no  way  seriously  oppressed ;  on  the  contrary,  was  allowed  great 
liberty  after  his  arrest,  and  during  the  examination,  and  finally  submit- 
ted to  be  committed,  rather  than  give  bail,  which  it  seems  was  easily 
to  be  obtained.  Whether  or  not  the  plaintiff  may  recover  more  than 
nominal  damages  is  for  a  jury  to  determine.  The  order  appealed 
from  denying  a  new  trial  must  be  reversed. 

Learned,  P.  J.,  and  Boardman,  J.,  concurred. 


Ch.  5)  PROCEKDINGS    BEFORE   MAGISTRATE  47 

SCAVAGE  V.  TATEHAM. 

(Court  of  Common  Pleas,  IGOl.  Cro.  Eliz.  S20.) 
False  imprisonment  in  London  from  the  10th  September  unto  the 
29th  September.  The  defendant  justifies,  for  that  he  was  mayor  and 
justice  of  peace  in  Pomfrait,  and  that  robbery  was  donethere,  and  the- 
plaintiff  was  thereof  suspected,  and  brought  before  him';  et  quia  vide- 
batur  suspectuosus,  he  detained  him  in  his  house  during  that  time  in 
the  declaration  mentioned,  to  examine  him  and  one  Pole,  who  was  not 
apprehended,  concerning  the  said  robbery;  and  afterwards,  upon  the 
29th  September,  delivered  him  over  to  the  new  mayor;  and  traverseth 
the  imprisonment  in  London. 

And  it  was  thereupon  demurred;  and  adjudged,  that  the  induce- 
ment to  the  traverse  was  not  good ;  for  a  justice  of  peace  cannot  de- 
tain a  person  suspected  in  prison  but  during  a  convenient  time,  only 
to  examine  him,  which  the  law  intends  to  be  three  days,  and  within 
that  time  to  take  his  examination,  and  send  him  to  prison  ;  for  he 
ought  not  to  detain  him  as  long  as  he  pleaseth,  as  he  here  did  eighteen 
days ;  neither  ought  he  to  detain  him  in  prison  in  his  own  house,  but 
he  is  to  commit  him  to  the  common  gaol  of  the  county ;  for  otherwise, 
when  the  justices  come  to  deliver  the  gaol,  he  is  not  in  the  gaol,  and 
may  not  be  delivered,  and  so  should  lie  longer  than  is  reasonable. 
Vide  St.  5  Hen.  IV,  c.  10 ;  2  Edw.  IV,  c.  8.  And  here  he  took  not 
any  examination,  but  delivered  him  over  to  the  new  m.ayor  without 
examination,  which  was  not  lawful.  And  therefore  it  was  adjudged 
for  the  plaintiff. 

CHARGE  TO  THE  GRAND  JURY. 

(Somersetshire  Assizes,  1849.    2  Car.  &  K.  843.) 
At  the  Taunton  assizes,  April  2,  1849,  Lord  Denman,  C.  J.,  in  his 
charge  to  the  grand  jury,  said: 

In  all  cases  in  which  prisoners  charged  with  felony  have  witnesses, 
and  those  witnesses  are  in  attendance  at  the  time  of  the  examination 
before  the  magistrate,  I  should  recommend  that  the  magistrate  should 
hear'the  evidence  of  such  witnesses  as  the  prisoner,  on  being  asked, 
wishes  to  be  examined  in  his  defense.  If  such  witnesses  merely  ex- 
plain what  has  been  proved  in  support  of  the  charge,  and  are  believed, 
they  will  actually  have  made  out  a  defense  on  behalf  of  the  accused, 
and  there  would  of  course  be  no  necessity  for  any  further  proceed- 
ings; but  if  the  witnesses  so  called  contradict  those  for  the  prosecu- 
tion in  material  points,  then  the  case  would  be  properly  sent  to  a  jury 
to  ascertain  the  truth  of  the  statements  of  each  party ;  and  the  depo- 
sitions of  the  prisoner's  witnesses  being  taken  and  signed  by  them, 
should  be  transmitted  to  the  judge,  together  with  the  depositions  in 
support  of  the  charge. 


48  BAIL  (Ch.  6 

CHAPTER  VI  ' 

BAIL 


REX  V.  PEPPER. 

(Court  of  King's  Bench,  16S4.    Comberbach.  298.) 

Cur,  We  are  not  bound  to  bail  a  man  committed  for  suspicion  of 
murder,  where  'tis  express'd  that  a  man  was  killed  (no,  tho'  coroner's 
inquest  find  it  but  manslaughter)  but  we  ought  to  have  the  examina- 
tions before  us,  and  if  it  appear  to  be  a  case  of  hardship  we  may  bail. 


REX  V.  JUDD. 
(Court  of  King's  Bench,  17SS.    2  Term  R.  235.) 

The  defendant  was  brought  up  on  this  day  by  a  writ  of  habeas 
corpus,  from  Hertford,  in  order  to  be  bailed.^     *     *     * 

AsHHURST,  J.  However  improper  the  defendant's  conduct  appears 
to  have  been  upon  the  proceedings  before  the  justices,  yet  unless  it 
appears,  upon  the  face  of  the  commitment  itself,  that  the  defendant 
is  charged  with  a  felony,  we  are  bound  by  the  habeas  corpus  act  to 
discharge  him;  taking  such  bail  for  his  appearance  to  take  his  trial 
as  we  in  our  discretion  shall  think, fit,  according  to  the  circumstances 
of  the  case.  And  therefore  the  question  is,  whether  there  is  specified 
in  this  commitment  such  an  offense  as  amounts  to  felony  ?  It  is  admit- 
ted that  neither  of  the  two  first  charges  in  the  commitment  amounts 
to  felony.  With  respect  to  the  last  charge,  it  is  not  that  the  defend- 
ant was  an  accessory  with  Rand  in  feloniously,  but  only  with  will- 
fully and  maliciously,  setting  fire  to  a  parcel  of  unthreshed  wheat. 
And  though  it  is  not  necessary  that  the  word  "feloniously"  should  be 
used  in  the  commitment,  yet  it  ought  to  appear  on  the  facts  stated  to 
be  in  law  a  felony,  and  within  the  description  of  the  act.  Now  the 
statute  has  only  made  it  felony  to  set  fire  to  a  cock,  mow,  or  stack,  of 
corn;  and  the  defendant  is  not  charged  with  cither  of  these.  What- 
ever words  the  Legislature  used,  we  must  suppose  that  they  knew  the 
meaning  of  them;  and  if  a  justice  uses  the  same  words,  we  are  bound 
to  suppose  that  he  intended  them  in  the  same  sense;  but  if  he  makes 
use  of  other  words,  he  must  be  more  precise. 

Now  here  a  parcel  of  corn  is  too  indefinite  a  description.  It  does 
not  come  within  the  description  of  the  act,  and  we  cannot  say  how 
much  it  is.  Twenty  ears  of  wheat  is  a  parcel.  Therefore  I  am  of  opin- 
ion that,  as  the  warrant  of  commitment  does  not  charge  the  defend- 
ant with  a  felony,  we  are  bound  to  bail  him.    With  regard  to  the  quan- 

1  Part  of  the  statement  of  facts  and  the  opinion  of  Grose,  J.,  are  omitted. 


Ch.  6)  BAIL  49 

turn  of  the  bail,  although  the  nature  of  the  defendant's  crime  is  not 
very  accurately  stated,  yet  as  sufficient  appears  on  the  depositions,  re- 
turned with  the  commitment,  to  shew  that  he  has  at  least  been  guilty 
of  an  enormous  offense,  I  think  we  ought  to  take  ample  security  for 
his  appearance;  and  that  he  himself  should  be  bound  in  il,000.  and 
four  sureties  in  iSOO.  each. 


REX  V.  KIMBERLEY. 

(Court  of  King's  Bench,  1729.    2  Strange,  84S.) 

The  defendant  was  brought  up  by  habeas  corpus,  being  committed 
to  Woodstreet-Counter,  for  feloniously  marrying  Bridget  Reading, 
contrary  to  an  Irish  act  of  Parliament,  6  Anne,  in  order  to  be  trans- 
mitted to  Ireland  to  be  tried,  the  offense  being  committed  there. 

Strange  moved  that  he  might  be  discharged  or  bailed,  insisting  that 
justices  of  the  peace  in  England  are  confined  to  act  only  as  to  such 
offenses  as  are  against  the  laws  of  England,  and  committed  in  Eng- 
land; and  the  proviso  in  the  habeas  corpus  act  gives  no  power  as  to 
offenses  in  Ireland,  but  leaves  it  on  the  former  practice. 

Sed  Per  Curiam.  It  has  been  done  in  Colonel  Lundy's  Case,  2 
Ven.  314,  and  in  3  Keb.  785,  the  court  refused  to  bail  a  man  commit- 
ted for  a  murder  in  Portugal.  If  application  is  not  made  to  have  him 
sent  over  in  a  reasonable  time,  you  may  apply  again. 

Thereupon  the  defendant  was  remanded,  and  upon  application  to 
the  Secretary  of  State,  it  was  referred  to  Mr.  Attorney  General,  to 
consider  of  the  manner  of  sending  him  over;  and  upon  an  attendance 
by  counsel,  Mr.  Attorney  reported,  that  he  might  be  taken  from  the 
Counter  by  a  messenger,  who  should  have  a  warrant  to  carry  him  to 
Ireland,  whither  he  was  carried,  tried,  condemned,  and  executed. 


REX  V.  WYNDHAM. 
(Court  of  King's  Bench,  1715.     1  Strange,  2.) 

The  defendant  Sir  William  Wyndham  being  brought  up  by  the  lieu- 
tenant of  the  Tower,  Serjeant  Pengelly,  Mr,  Jeffries,  Mr.  Reeve  and 
Mr.  Hungerford  moved  that  he  might  be  admitted  to  bail,  and  oft'ered 
several  arguments  to  induce  the  court  to  bail  him,  which,  with  the  an- 
swers given  thereto  by  Sir  Joseph  Jekyll,  Mr.  Attorney  and  Solicitor, 
are  comprised  in  the  opinion  of  the  court,  which  was  delivered  the 
last  day  of  the  term,  ut  sequilur: 

Parker,  C.  J.^  This  is  a  commitment  by  the  Secretary  of  State  for 
high  treason  generally.     *     *     * 

2  Part  of  this  case  is  omitted. 
Mik.Cb.Pb.(Aeridged  Ed.) — 4 


50  BAIL  (Ch.  6 

The  next  thing  relied  upon  is  the  illness  of  Sir  William  Wyndham, 
which  appears  to  be  a  distemper  incident  to  the  family.  We  are  of 
opinion,  that  this  is  not  ground  enough  singly,  to  induce  the  court  to 
admit  Sir  William  to  bail ;  for  it  must  be  a  present  indisposition,  aris- 
ing from  the  confinement;  and  so  we  held  this  term  in  the  Case  of 
Mr.  Harvey  of  Combe,  who  stabbed  himself  after  his  examination; 
and  was  refused  to  be  bailed,  because  his  illness  was  from  an  act  of 
his  own.  But  I  shall  not  enlarge  upon  this  head,  since  we  are  all  of 
opinion  Sir  William  Wyndham  ought  to  be  bailed.  There  have  been 
four  terms  passed  since  his  commitment,  and  one  assizes  in  Somer- 
setshire, out  of  which  county  it  has  been  hinted  the  ground  of  the 
com^plaint  against  Sir  William  Wyndham  arises ;  and  therefore,  there 
being  no  prosecution  against  him,  he  must  be  admitted  to  bail,  him- 
self in  £10,000.  and  four  sureties  in  i5,000.  each. 


REGINA  V.  RIDPATH. 
(Court  of  Queen's  Bench,  1713.     10  Mod.  152.) 

A  recognizance  was  entered  into  by  Ridpath,  with  securities,  where- 
by he  was  bound  to  appear  the  first  day  of  the 'term  ad  respondendum, 
etc.,  in  the  meantime  to  his  good  behavior,  and  not  to  depart  without 
the  license  of  the  court. 

An  information  was  preferred  against  him  by  the  Attorney  General; 
to  which  information,  by  reason  of  some  defect  in  the  pleading,  the 
Attorney  General  thought  fit  to  enter  a  nolle  prosequi,  and  then  the 
Attorney  General  exhibited  another. 

It  was  insisted  in  favor  of  Ridpath  and  his  securities : 

First.  That  the  words  "ad  respondendum"  must  be  extended  to 
those  crimes  only,  the  suspicion  of  which  was  the  cause  of  his  commit- 
ment and  entering  into  the  recognizance,  and  not  to  the  crimes  he 
should  afterwards  commit,  or  be  charged  with ;  for  then  it  would  be 
utterly  impossible  for  a  man  to  get  anybody  to  be  bound  in  a  recog- 
nizance with  him;  an  opinion  of  the  innocence  of  the  person,  as  to  the 
crime  charged,  being  probably  the  only  motive  that  can  be  sufficient 
to  induce  men  to  become  bound  for  others. 

Secondly.  That  "ad  respondendum"  refers  to  the  first  day  of  the 
term,  when  he  was  bound  to  appear. 

Thirdly.  That  the  entering  of  a  nolle  prosequi  was  a  bar  to  the 
offense  contained  in  the  information;  at  least  that  it  was  a  discharge 
from  any  further  prosecution  for  it ;  and  that  it  was  all  one,  whether 
he  was  discharged  from  the  recognizance  by  rule  of  court  made  for 
that  purpose,  or  by  a  judgment,  that  by  a  necessary  consequence 
amounted  to  a  discharge. 

But  The  Court  were  of  opinion,  that  the  recognizance  extended  to 
all  crimes  whatever  which  he  should  be  charged  with ;  and  that  if  it 
had  relation  to  any  particular  crime  only,  it  must  be  mentioned  in  the 


Ch.  6)  BAIL  51 

recognizance;  but  that  is  only  "ad  respondendum"  generally.  That 
there  was  no  such  inconvenience  as  was  pretended ;  the  bail  in  this 
case  being  bound  in  a  sum  certain,  and  not  to  stand  in  the  place  of 
the  principal,  as  in  civil  cases ;  that  the  person's  not  appearing  accord- 
ing to  his  recognizance,  his  absence  (be  the  cause  or  reason  of  it  what 
it  will)  was  the  cause  of  the  forfeiture  of  the  recognizance.  That 
anciently  in  special  bail  in  civil  actions,  where  the  bail  is  to  stand  in 
the  place  of  the  principal,  bail  to  one  action  was  to  stand  bail  to  all  ac- 
tions that  he  should  be  charged  with  when  in  court.  That  this  was 
hard  in  case  of  special  bail,  and  is  therefore  now  altered,  though  al- 
tered only  by  rule  of  court ;  and  that  as  to  common  bail  the  law  is  still 
the  same.    That  the  nolle  prosequi  was  neither  a  bar  nor  discharge.^ 

8  Accord:  State  v.  Randolph,  22  Mo.  474  (1S."6) ;  People  v.  Gillman,  125 
N.  Y.  372,  26  N.  E.  469  (1S91).  Cf.  State  v.  Bryant,  55  Iowa,  451,  8  N.  W. 
303  (ISSl). 

So,  where  the  recognizance  specifies  the  offense  for  which  the  accused  is 
to  appear  and  answer,  if  it  also  provides  that  the  defendant  shall  not  depart 
without  leave,  it  is  not  an  answer  to  say  that  the  defendant  might  have  ob- 
tained his  discharge  from  the  court,  either  because  nothing  was  alleged 
against  him  by  indictment,  or  because  he  was  not  indicted  for  the  same  of- 
fense as  that  upon  which  he  had  been  bound  over.  Commonwealth  v.  Teevens, 
143  Mass.  210,  9  N.  E.  524.  58  Am.  Rep.  131  (1887).  Or  that  the  grand  jurv 
had  returned  "no  bill."  State  v.  Fitch,  2  Nott  &  McC.  (S.  C.)  558  (1820). 
Or  that  the  accused  had  previously  been  acquitted  on  an  indictment  for  the 
same  offense.  Archer  v.  Commonwealth,  10  Grat.  (Va.)  627  (1854).  Or  even 
that  he  had  been  tried  and  found  not  guilty.  An  order  of  the  court  discharg- 
ing him  is  requisite.     State  v.  Stout,  11  N.  J.  Law,  124  (1829). 

If  the  recognizance  is  only  for  an  appearance  at  the  next  term  of  the  court, 
-bail  are  discharged  when  they  produce  the  defendant  at  that  term,  and  the 
court  cannot,  against  the  express  dissent  of  the  bail,  respite  the  recognizance 
to  a  subsequent  term.  People  v.  Clary  &  Fleming,  17  Wend,  (N.  Y.)  374  (1837) ; 
Keefhaver  v.  Commonwealth,  2  Pen.  &  W.  (Pa.)  240  (1830).  If,  after  a  recog- 
nizance is  entered  into,  the  accused  is  arrested  on  a  bench  warrant  issued 
upon  an  indictment  for  the  same  offense  and  he  subsequentlv  escapes,  his 
bail  are  discharged.    People  v.  Stager,  10  Wend.  (N.  Y.)  431  (1833). 

If  the  recognizors  undertake  to  produce  the  accused  to  answer  a  specific 
charge,  his  failure  to  appear  and  answer  a  different  charge  is  not  a  breach 
of  the  undertaking.  Gresham  v.  State,  48  Ala.  625  (1872).  Statutes  now 
provide  that  the  undertaking  is  forfeited  by  failure  of  the  defendant  to 
appear,  although  the  offense  is  incorrectly  described  in  tlie  undertaking.  In 
Gresham  v.  State,  supra,  it  was  held  that  such  a  statute  applied  only  to 
such  misdescriptions  as  nevertheless  apprise  the  parties  of  the  nature  of 
the  offense  for  which  the  Indictment  is  to  be  preferred,  and  to  cases  in 
which  the  indictment  embraces  the  particular  offense  mentioned  in  the 
undertaking.  It  is  no  defense  to  an  action  on  the  recognizance  that  the 
defendant  could  not  be  produced  because  of  the  fact  that  he  was  at 
the  time  imprisoned  in  another  state  for  an  offense  committed  there.  De- 
vine  V.  State,  5  Sneed  (Tenn.)  623  (1858).  See,  also,  Cain  v.  State,  55  Ala. 
170  (1876);  State  v.  Horn,  70  Mo.  466,  35  Am.  Rep.  437  (1879);  Ya  Through 
V.  Commonwealth,  89  Ky.  151,  12  S.  W.  143,  25  Am.  St.  Rep.  524  (1SS9); 
King  V.  State,  18  Neb.  375,  25  N.  W.  519  (1885).  But  where  the  bail  allow 
the  accused  to  go  into  another  state  and  while  there  he  is,  after  the  for- 
feiture of  the  recognizance,  delivered  on  the  requisition  of  the  Governor 
of  a  third  state  for  a  crime  committed  (without  the  knowledge  of  the  bail) 
in  said  state,  and  is  imprisoned  in  such  state  on  conviction,  the  bail  are  not 
discharged  from  liability  on  their  recognizance  in  a  suit  by  the  state  where 
the  accused  was  first  arrested.  Taylor  v.  Taintor,  16  Wall.  346,  21  L.  Ed. 
287  (1S72).  Where  the  condition  of  the  recognizance  becomes  impossible  by 
the  act  of  God  or  of  the  law,  or  of  the  obligee,  the  default  is  excused ;    hence 


52  THE   GRAND   JURY  (Ch.  7 

CHAPTER  VII 
THE  GRAND  JURY 


The  sheriff  of  every  county  is  bound  to  return  to  every  session  of 
the  peace,  and  every  commission  of  oyer  and  terminer,  and  of  general 
gaol  delivery,  twenty-four  good  and  lawful  men  of  the  county,  some 
out  of  every  hundred,  to  inquire,  present,  do,  and  execute  all  those 
things  which  on  the  part  of  our  lord  the  king  shall  then  and  there  be 
commanded  them.  They  ought  to  be  freeholders,  but  to  what  amount 
is  uncertain;  which  seems  to  be  casus  omissus,  and  as  proper  to  be 
supplied  by  the  Legislature  as  the  qualifications  of  the  petit  jury, 
which  were  formerly  equally  vague  and  uncertain,  but  are  now  set- 
tled by  several  acts  of  Parliament,  However,  they  are  usually  gentle- 
men of  the  best  figure  in  the  county.  As  many  as  appear  upon  this 
panel  are  sworn  upon  the  grand  jury  to  the  amount  of  twelve  at  the 
least,  and  not  more  than  twenty-three;  that  twelve  may  be  a  major- 
ity, which  number,  as  well  as  the  constitution  itself,  we  find  exactly 
described  so  early  as  the  laws  of  King  Ethelred:  "Exeant  seniores 
duodecim  thani,  et  prasfectus  cum  eis,  et  jurent  super  sanctuarium 
quod  eis  in  manus  datur,  quod  nolint  ullum  innocentem  accusare,  nee 
aliquem  noxium  celare."     *     *     * 

The  grand  jury  are  sworn  to  inquire  only  for  the  body  of  the  coun- 
ty, pro  corpore  comitatus ;  and  therefore  they  cannot  regularly  in- 
quire of  a  fact  done  out  of  that  county  for  which  they  are  sworn,  un- 
less particularly  enabled  by  an  act  of  Parliament. 

When  the  grand  jury  have  heard  the  evidence,  if  they  think  it  a 
groundless  accusation,  they  used  formerly  to  indorse  on  the  back  of 
the  bill  "Ignoramus,"  or,  "We  know  nothing  of  it,"  intimating  that, 
though  the  facts  might  possibly  be  true,  that  truth  did  not  appear  to 
them;  but  now  they  assert  in  English  more  absolutely  "Not  a  true 
bill,"  or  (which  is  the  better  way)  "Not  found,"  and  then  the  party 
is  discharged  without  further  answer.  But  a  fresh  bill  may  after- 
wards be  preferred  to  a  subsequent  grand  jury.  U  they  are  satisfied 
of  the  truth  of  the  accusation,  they  then  indorse  upon  it  "A  true  bill," 
anciently  "Billa  vera."  The  indictment  is  then  said  to  be  found,  and 
the  party  stands  indicted.  But  to  find  a  bill  there  must  be  at  least 
twelve  of  the  jury  agree,  for  so  tender  is  the  law  of  England  of  the 

the  death  of  the  accused  (Merritt  v.  Thompson,  1  Hilt.  [N.  Y.]  550  [185S1), 
01-  his  imprisomiicut  at  the  date  of  appearance  by  authority  of  the  state 
(People  V.  Bartlett,  3  Hill  [N.  Y.]  570  |1S42|).  excuses  the  bail;  but  sickness 
of  the  accused  (State  v.  Edwards,  4  lluiuph.  [Tenu.J  226  [1S131 ;  Piercy  v. 
I'eople,  10  111.  App.  219  [ISSl].  [Contra:  People  v.  Tubbs,  37  N.  Y.  586 
(1868)]).  or  his  insanity  (Adler  v.  State,  35  Ark.  517,  37  Am.  Rep.  48  [1S80J) 
has  been  held  not  to  be  such  an  act  of  God  as  will  excuse  the  bail. 


Ch.  7)  THE    GRAND   JURY  53 

lives  of  the  subjects,  that  no  man  can  be  convicted  at  the  suit  of  the 
king  of  any  capital  offense,  unless  by  the  unanimous  voice  of  twenty- 
four  of  his  equals  and  neighbors;  that  is,  by  twelve  at  least  of  the 
grand  jury,  in  the  first  place,  assenting  to  the  accusation,  and  after- 
wards by  the  whole  petit  jury  of  twelve  more  finding  him  guilty  upon 
his  trial'  But  if  twelve  of  the  grand  jury  assent,  it  is  a  good  present- 
ment, though  some  of  the  rest  disagree;  and  the  indictment,  when  so 
found,  is  publicly  delivered  into  court. 
4  Black.  Comm.  302  et  seq. 


ANONYMOUS. 

(Court  of  King's  Bench,  1332.    27  Liber  Assisarum,  pi.  63.) 

One  G.  was  indicted  in  the  King's  Bench  for  that  being  one  of  the 
enditors  that  indicted  certain  persons  of  divers  felonies,  they  sued  him 
for  betraying  the  counsel  of  the  King,  for  that  he  had  openly  shown 
to  others  what  things  the  said  persons  were  indicted  for,  and  thus  be- 
trayed the  counsel  of  the  King.  For  this  he  was  arraigned  as  of  fel- 
ony. And  Shardelow — some  judges  would  hold  it  treason,  but  he  was 
arraigned  only  of  felony,  and  was  acquitted.  Quaere,  what  would  have 
been  "the  judgment  if  he  had  been  convicted?  ' 


REGINA  V.  RUSSELIy. 

(Central  Criminal  Court,  1842.    Car.  &  M.  247.) 

The  prisoner  was  indicted  for  feloniously  assaulting Abra- 
ham on  the  21st  of  December,  and  cutting  and  wounding  him  on  his 
head,  left  eyebrow,  and  nose,  with  intent  to  do  him  some  grievous 
bodily  harm. 

The  prosecutor  and  several  of  the  witnesses  for  the  prosecution 
were  Lascars,  and  C.  Phillips,  before  the  jury  were  charged,  intimated 
to  the  judges  that  there  was  some  doubt  as  to  whether  those  witnesses 
had  been  properly  sworn  to  give  evidence  before  the  grand  jury. 

GuRNEY,  B.,  and  Wightman,  J.,  were  both  of  opinion  that  that 
was  a  matter  which  they  ought  not  to  inquire  into,  and  also  that  the 
mode  of  swearing  the  witnesses  to  go  before  the  grand  jury  would 
not,  if  incorrect,  vitiate  the  indictment,  as  the  grand  jury  were  at 

1  A  grand  juror  may  be  called  upon  to  testify  what  the  evidence  was  before 
the  grand  jury.  Crocker  v.  State,  Meigs  (Tenn.)  127  (1S38);  Gordon  v.  Com- 
monwealth, 92  Pa.  216,  37  Am.  Rep.  672  (1S79).  Also  to  prove  that  a  certain 
witness  did  not  testify  before  the  grand  jury.  Commonwealth  v.  Hill,  11 
Cush.  (Mass.)  137  (1853).  Or  to  prove  what  persons  were  examined  before 
the  grand  jury.  Ex  parte  Schmidt,  71  Cal.  212,  12  Pac.  302  (ISSG).  A  forti- 
ori, a  witness  may  testify  as  to  what  he  stated  before  the  grand  jury.  Keg. 
T.  Gibson,  Car.  &  M.  672  (1842).  Or  one  witness  may  testify  as  to  what 
another  witness  so  stated,    neg.  v.  Hughes,  1  Car.  &  K.  520  (1844). 


54  THE    GRAND   JURY  (Ch.  7 

liberty  to  find  a  bill  upon  their  own  knowledge  merely,  and  were  an- 
ciently in  the  habit  of  doing  so.  And  Wightman,  J.,  added  that  the 
'same  point  had  arisen  lately  on  the  Northern  circuit,  before  Lord 
Denman  and  himself,  and  they,  after  considering  the  subject,  were 
of  the  same  opinion  as  had  been  expressed  to-day. 

The  trial  proceeded,  and  the  prosecutor  and  such  witnesses  as  were 
Lascars  having  been  sworn  in  the  manner  which  they  considered  bind- 
ing— 

The  prisoner  was  eventually  convicted  of  an  assault,  and  sentenced 
to  be  imprisoned  for  eight  days.- 


STATE  V.  SEABORN". 

(Supreme  Court  of  North  Carolina,  1S33.     13  N.  C.  305.) 

RuFFiN,  C.  J.3  *  *  *  The  second  objection  to  the  grand  jury 
is  that  in  the  record  one  Joel  Jones  is  named  as  one  of  the  grand  ju- 
rors sworn,  while  the  list  returned  contained  no  such  person,  but  one 
of  the  name  of  Joes  Jones.  This  differs  from  the  former  objection  in 
this:  That  here  the  facts  which  it  is  alleged  constitute  the  error  do 
appear  in  the  record ;  whereas  the  first  error  was  supposed  to  consist 
in  the  silence  of  the  record  upon  certain  facts.  It  is  insisted  that  the 
grand  jury  must  be  composed  only  of  those  summoned,  and  that  if 
one  be  impaneled  on  it  by  a  dift'erent  name  from  all  those  summoned, 

2  Accord :  State  v.  Wilcox,  104  N.  C.  847,  10  S.  E.  453  (18S9) :  State  v.  Lee, 
87  Tenn.  114,  9  S.  W.  425  (18SS) ;  State  v.  Terry,  30  Mo.  368  (1860) ;  Corn- 
monwealtli  v.  Woodward,  157  Mass.  516,  32  N.  E.  939,  34  Am.  St  Rep.  302 
(1893). 

While  there  must  be  legal  and  competent  evidence  before  the  grand  jury 
to  sustain  an  indictment  (People  v.  Lauder,  82  Mich.  109,  46  N.  W.  956  [18901), 
the  authorities  generally  agree  that  an  indictment  is  not  vitiated  merely 
because  the  grand  jury  examined  incompetent  witnesses  (State  v.  Wolcott, 
21  Conn.  272  [1851] ;  State  v.  Dayton,  23  N.  J.  Law,  49,  53  Am.  Dec.  270 
[1850] ;  Bloomer  v.  State,  3  Sneed  [Tenn.]  66  [1855]),  or  considered  improper 
evidence  (Hope  v.  People,  S3  N.  Y.  418,  38  Am.  Rep.  460  [ISSl] ;  State  v. 
Logan,  1  Nev.  509  [1805]),  or  required  a  witness  to  give  improper  evidence. 
e.  g.,  to  testify  against  himself  (People  v.  Lauder,  82  Mich.  109,  46  N.  W.  956 
[1S90J.  [Contra:  State  v.  Froiseth,  16  Minn.  290.  Gil.  260  (1S71).])  The  sutli- 
ciency  of  the  evidence  before  the  grand  jury  will  not  be  inquired  into 
(Stewart  v.  State,  24  Ind.  142  [1865] ;  United  States  v.  Reed,  2  Blatchf.  435, 
Fed.  Cas.  No.  16,134  [1852]),  at  least  if  it  appear  that  there  was  any  legally 
competent  evidence  l>efore  them  (Washington  v.  State,  63  Ala.  189  [1879] ; 
State  V.  Logan,  1  Nev.  509  [1805]). 

In  the  absence  of  statutory  provisions,  it  is  no  objection  to  the  validity  of 
an  indictment  that  one  or  more  of  the  grand  jurors,  who  were  otherwise 
qualified,  had  formed  or  expressed  an  opinion  of  the  guilt  of  the  accused  be- 
fore the  finding  of  the  indictment.  Tucker's  Case,  8  Mass.  286  (1811);  State 
v.  Chaii-s,  9  Baxt.  (Tenn.)  196  (1877).  Or  that  one  or  more  of  the  jurors  were 
biased  or  had  an  interest  (not  pecuniary)  in  the  case.  Connnonwealth  v. 
Brown,  147  Mass.  585,  18  N.  E.  587,  1  L.  R.  A.  620,  9  Am.  St.  Rep.  736  (1S;SS) ; 
State  V.  Rickey,  10  N.  J.  Law,  83  (1828) ;  Commonwealth  v.  Strother.  1  Va. 
Cas.  186  (1811).  Or  was  of  kin  to  the  accused  or  to  the  prosecutor.  State  v. 
Brainerd,  56  Vt.  532,  48  Am.  Rep.  818  (1884);  State  v.  Russell.  90  Iowa,  569. 
.58  N.  W.  915.  28  L.  R.  A.  195  (ISOn.  The  general  qualifications  for  grand 
jurors  are  very  generally  provided  for  by  statute. 

«  Part  of  this  ca.se  is  omitted 


Ch.  7)  THE    GRAND   JCRY  55 

he  must  be  taken  to  be  a  different  person,  and  the  bill  is  not  well  found. 

This  objection,  if  founded  in  fact  and  taken  in  due  season  in  the 
superior  court,  would,  in  my  opinion,  have  been  unanswerable;  knd 
had  it  then  been  overruled,  it  would  have  been  error.  But  this  I  am 
saying-  as  a  mere  dictum;  for,  admitting-  the  exception  to  have  been 
once  sufficient,  the  question  remains  whether  the  case  was  open  to  it 
when  it  was  actually  taken,  which  is  the  point  of  the  present  decision. 

I  do  not  find  that  it  is  yet  settled  in  England  whether  an  exception 
to  a  grand  juror  can  be  taken  after  verdict,  or  even  after  plea  to  the 
felony.  Perhaps  the  unequivocal  terms  of  St.  11  Hen.  IV,  9,  may 
make  it  imperative  on  the  court  to  receive  it  at  any  time;  since,  if 
well  founded,  it  avoids  the  indictment  ab  initio  "with  all  the  depend- 
ence thereof,"  which  includes,  as  some  suppose,  the  prisoner's  plea  in 
chief  and  "the  verdict."  Yet  others  have  held  that,  although  the  pro- 
ceedings be  void  under  the  statute,  the  matter  of  avoidance  must  be 
brought  before  the  court  at  a  proper  and  at  an  early  stage,  namely, 
before  the  bill  found,  by  challenge,  or  by  special  plea  upon  arraign- 
ment, with  a  plea  over  to  the  felony  either  then  or  upon  the  overruling 
of  the  first  plea.  To  that  effect  is  the  great  authority  of  Lord  Coke 
(3  Inst.  33,  3-i) ;  and  in  Bacon's  Abridgment,  Juries,  A,  this  is  said  to 
be  the  better  opinion.  But  Serjeant  Hawkins  afterwards  remarks 
(book  2,  c.  25,  §§  23,  26,  27)  that  it  seems  yet  doubtful  how  far  ad- 
vantage can  be  taken  of  the  disqualification  of  a  grand  juror  after 
trial.  Whatever  may  be  the  correctness  of  this  doubt,  it  is  manifest 
that  it  depends  upon  that  statute  and  has  no  other  foundation. 

There  is  nothing  to  ground  it  on  in  this  state.  The  statute  of  Henry 
IV  is  not  in  force  here,  because  we  have  legislated  for  ourselves  upon 
this  subject,  and  have  established  by  many  acts  a  complete  system  of 
our  own,  inconsistent  in  many  respects  with  that  of  England.  I  do 
not  think  it  necessary  to  recite  our  statutes,  and  content  myself  with 
a  reference  to  them.  They  are  the  acts  of  1779,  c.  137,  of  1806,  c. 
693,  §  11,  and  c.  694,  of  1807,  c.  712,  and  of  1810,  c.  801.  A  perusal 
of  them  must  satisfy  any  mind  that  all  these  statutes  are  directory  in 
their  nature.  There  is  not  an  annulling  clause  or  word  in  any  one  of 
them ;  and  from  many  of  the  provisions  it  must  be  deduced  that  no 
such  consequences  of  an  irregularity  were  intended.  If  we  advert,  for 
instance,  to  the  very  particular  directions  of  St.  1806,  c.  694,  relative 
to  the  forming  of  the  jury  lists  from  the  tax  list,  to  be  furnished  by 
the  clerk  of  the  county  court;  to  the  writing  the  names  on  scrolls  of 
equal  size ;  to  the  putting  them  in  a  box  having  a  certain  number  of 
divisions,  marks,  locks  and  keys ;  to  the  locking  the  box,  the  custody 
of  the  keys  and  of  the  box ;  and  to  the  drawing  of  the  names  by  a 
child  under  a  certain  age — when,  I  say,  we  advert  to  these  provisions, 
and  also  recollect  that  many  of  the  matters  can  by  no  method  get  into 
the  record  of  the  superior  court,  and  that  the  statute  contemplates  that 
no  part  of  them  will  get  there,  by  communication  from  the  county 
court,  except  the  list  of  jurors  to  be  summoned,  that  is,  the  result  of 


56  THE    GRAND   JURY  (Ch.  7 

all  the  previous  ceremonies,  the  impression  on  the  mind  must  amount 
to  conviction  that  the  enactments  are  merely  directory,  and,  if  so,  that 
others  upon  the  same  subject  in  the  same  statute,  or  in  another  statute 
in  pari  materia,  partake  of  the  same  character. 

But  the  prevailing  consideration  is  the  want  of  any  words  importing 
that  the  proceeding  shall  be  void,  if  the  directions  of  the  acts  be  not 
strictly  observed.  Upon  this  ground  McEntire's  Case,  4  N.  C.  267, 
was  decided,  and  ruled  that  in  this  state  exceptions  to  grand  jurors 
must  be  taken  at  a  period  analogous  to  that  for  excepting  to  a  petit 
juror;  that  is,  at  the  earliest  point  of  time  the  party  could.  That  to  a 
petit  juror  must  be  by  challenge  when  tendered,  as  has  long  been  set- 
tled at  common  law,  and  was  also  here  under  the  same  act  of  1?79  in 
(Oldham's  Case,  2  N.  C.  450.  In  strictness,  so  ought  a  grand  juror  to 
be  challenged  before  he  is  sworn.  Thus  it  was  at  common  law,  and 
there  our  acts  still  leave  the  case.  That  was  the  course,  I  recollect,  in 
Burr's  trial ;  and  the  case  cited  from  9  Mass.  107,  Commonwealth  v. 
Smith,  rules  that,  upon  a  statute  of  that  state,  similar  to  ours,  no  plea 
of  an  irregularity  in  impaneling  the  grand  jury  could  be  received. 
But  it  seems  to  be  agreed  in  McEntire's  Case  that  the  objection  may 
be  by  plea  upon  the  arraignment;  and  to  that  I  would  adhere,  as  a 
fair  and  convenient  method.  But  I  think  all  objections  of  the  sort 
are  precluded  by  a  plea  to  the  felony.     *     *     * 

I  am  therefore  of  opinion  that  both  of  the  objections  taken  in  the 
first  reason  in  arrest  are  insufficient  and  must  be  overruled.    *    *    *  ■* 

*  Some  courts  hold  that,  If  accused  was  In  a  position  to  object  by  challenge 
either  to  the  array  or  to  a  juror,  his  neglect  to  challenge  ou  the  organiza- 
tion of  the  jury  is  a  waiver,  and  he  cannot  afterward  object  by  motion  to 
quash  or  bv  plea  in  abatement.  Musick  v.  People,  40  111.  20S  (ISG'o) ;  :McClary 
V.  State,  75  Ind.  2G0  (ISSl) ;  Fisher  v.  State,  93  Ga.  309,  20  S.  E.  329  (1S93). 
But  if  he  had  no  opportunity  to  challenge  he  may  plead  in  abatement  any 
matter  which  was  suliicient  cause  of  challenge.  Pointer  v.  State,  89  Ind.  255 
(1SS3).  Others  hold  that  the  accused  may  except  on  arraignment.  State  v. 
Rockafellow,  6  N.  J.  Law,  332  (1790) ;  Newman  v.  State,  14  Wis.  393  (18(51). 
It  is  too  late  after  verdict  (People  v.  Robinson.  2  Parker,  Cr.  R.  235  [1855]). 
or  after  pleading  in  bar  (State  v.  Carver,  49  Me.  588.  77  Am.  Dee.  275 
[ISGl] ;  Pointer  v.  State,  89  Ind.  255  [1883] ;  State  v.  Heffernan,  28  R..  I.  477, 
68  Atl.  3G4  [1907]),  to  object  to  the  incompetency  of  the  grand  jury. 


Ch.  8)  THE   INDICTMENT  57 

CHAPTER  VIII 
THE  INDICTMENT 


SECTION  1.— FORM  AND  REQUISITES   OF  THE  INDICT- 
MENT IN  GENERAL 

I.  The  Caption- 

Touching  the  forms  of  indictments,  there  are  two  things  consid- 
erable : 

1.  The  caption  of  the  indictment. 

2.  The  indictment  itself. 

The  caption  of  the  indictment  is  no  part  of  the  indictment  itself, 
but  it  is  the  style  or  preamble,  or  return  that  is  made  from  an  inferior 

court  to   a   superior,    from   whence   a   certiorari    issues    to   remove. 

*  «     « 

1.  The  name  of  the  county  must  be  in  the  margin  of  the  record,  or 
repeated  in  the  body  of  the  caption. 

2.  The  court  where  the  presentment  is  made  must  be  expressed. 

*  *     * 

3.  It  must  appear  where  the  session  was  held,  and  that  the  place 
where  it  was  held  is  within  the  extent  of  the  commission.     *     »     ♦ 

4.  The  justices'  names.     *     *     * 

5.  The  title  of  their  authority.     *    *     * 

6.  It  must  return  that  the  indictment  was  made  per  sacramen- 
tum.    *    *    * 

7.  It  must  name  the  jurors  that  presented  ,the  offense.    *    *    * 

8.  They  must  be  returned  to  be  probi  et  legales  homines,  and  de 
comitatu  prasdicto.     *     *     * 

9.  It  seems  requisite  also  to  add  this  clause,  onerati  et  jurati  ad  in- 
quirendum pro  domino  rege  et  pro  corpore  comit'  praedict'.     *     *     * 

And  thus  far  for  the  caption  of  the  indictment,  where,  note:  (1) 
That  if  the  caption  be  faulty  in  the  form,  yet  the  same  term  it  may  be 
amended  by  the  clerk  of  the  assizes,  or  the  peace,  but  not  in  another 
term. 

2  Hale.  P.  C.  c.  XXIII. 


58  THE    INDICTMENT  (Cll.  8 


PEOPLE  V.  BENNETT. 

(Court  of  Appeals  of  New  York,  1S67.    37  N.  Y.  117,  93  Am.  Dec.  551.) 

FuLLERTON,  J.^  After  the  plea  of  not  guilty  had  been  entered,  and 
the  trial  moved  by  the  district  attorney,  the  counsel  for  the  prisoner 
made  a  motion  to  quash  the  indictment,  because: 

1.  It  did  not  appear,  on  the  face  of  the  indictment,  that  it  was  found 
or  presented  by  a  grand  jury. 

2.  Because  it  did  not  appear,  on  its  face,  that  it  was  found  and  pre- 
sented by  the  requisite  number  of  grand  jurors. 

3.  Because  it  was  not  alleged,  in  the  indictment,  that  the  grand  jury 
were  charged  and  sworn  by  the  Court  of  Sessions  to  inquire  for  the 
people  of  the  state  of  New  York,  and  for  the  body  of  the  county  of 
Cortland.     *     *     * 

That  part  of  the  indictment  which  is  complained  of  as  defective  is 
as  follows : 

"Court  of  Sessions,    1   _      ,      ,    -, 
"Cortland  County.      |  Cortland  County-ss: 

"The  jurors  of  the  people  of  the  state  of  New  York,  in  and  for  the 
body  of  the  county  of  Cortland,  upon  their  oaths  present." 

Then  follow  apt  words  charging  the  defendant  with  the  commis- 
sion of  a  larceny.  Here  are  all  the  requisites  of  a  good  commence- 
ment to  an  indictment.  It  plainly  appears  to  have  been  found  in  the 
Court  of  Sessions  for  the  county  of  Cortland,  and  by  the  jurors  of 

1  Part  of  this  case  Is  omitted. 

"In  practice,  in  England,  appending  tbe  caption  Is  usually  a  ministerial 
act,  and  it  is  introduced  as  a  part  of  tlie  record,  or  return  from  an  inferior  to 
a  superior  court,  from  wtiich  a  certiorari  issues.  Here  the  caption  is  usually 
drawn  with  the  other  parts  of  the  indictment,  and  is  embodied  in  the  instru- 
ment returned  by  the  grand  jury  as  a  true  bill.  But  we  do  not  think  that  an 
insuperable  objection  to  showing,  by  a  certificate,  filed  in  the  course  of  pro- 
ceedings in  a  particular  case,  under  the  hand  of  the  clerk,  the  actual  time 
of  filing  the  bill.  It  might  be  a  good  reason  why  an  amendment  should  not  he 
made  of  the  caption  in  such  cases.  *  *  *  The  time  of  finding  of  the  bill 
may  be  shown  aliunde,  wlien  it  becomes  necessary  to  show  that  the  bill  was 
found  at  a  day  subsequent  to  the  commencement  of  the  session  of  the  court." 
Dewey,  J.,  in  Commonwealth  v.  Stone,  3  Gray  (Mass.)  453  (1855). 

"Inasnuich  as  a  prosecution,  in  this  state,  is  never  removed  from  one  to  a 
higher  tribunal,  a  caption  can  he  of  no  Iienefit  to  an  indictment,  and  is  uni- 
formly dispensed  with."  Voorhies,  J.,  in  State  v.  Marion,  15  La.  Ann.  495 
(18G0). 

A  caption  Is  only  necessary  where  the  court  acts  under  a  special  commission, 
and  a  mistake  in  the  caption  when  the  court  sits  by  authority  of  public  law 
will  not  vitiate  the  indictment.     State  v.  Wasden,  4  N.  C.  596  (1817). 

"Following  the  cases  cited  above,  we  feel  it  our  duty  to  regard  the  question 
as  settled  in  this  state,  that  a  caption,  such  as  is  described  in  Reeves  v.  State 
[20  Ala.  33],  supra,  is  an  essential  of  a  good  indictment,  and  when  the  ques- 
tion comes  before  us  on  appeal,  if  the  record  does  not  contain  such  caption. 
it  is  fatal  error.  If  It  were  an  open  question  in  this  state,  it  might  admit  of 
serious  doubt  if  this  doctrine  did  not  have  its  origin  in  certiorari  proceedings 
from  courts  of  limited,  inferior  jurisdiction,  and  that  it  should  not  lie  applied  to 
records  from  roiirts  of  general  jurisdiction."  Stone,  J.,  in  Goodloe  v.  State, 
60  Ala.  93  (1877). 


Ch.  8)  THE    INDICTMENT  59 

the  people  for  said  county.  It  is  true  that  it  does  not  allege  that  it 
was  found  by  a  grand  jury,  or  by  the  legal  number  of  grand  jurors; 
but  these  are  plainly  implied,  because  that  body,  legally  constituted, 
alone  have  the  power  to  present  any  one  for  trial.  This  has  been  fre- 
quently decided.  McClure  v.  State,  1  Yerg.  (Tenn.)  20G,  per  Ca- 
tron, J. 

The  form  of  this  indictment  is  identical,  mutatis  mutandis,  with  that 
long  since  adopted  in  England,  and  which  has  obtained  in  most  of  the 
states  in  our  own  country.  The  form  used  in  England  nearly  three 
hundred  years  ago  was  "juratores  pro  domina  regina  presentant  quod," 
etc.  West's  Symboleography,  pt.  2,  p.  96.  And  it  has  been  continued 
without  exception  to  the  present  day.  A  great  deal  of  confusion,  how- 
ever, exists  in  the  books,  because  the  distinction  between  the  com- 
mencement and  the  caption  of  an  indictment,  which  has  always  existed 
in  England,  has  not  uniformly  been  maintained  here.  "The  whole 
question  as  to  what  a  caption  should  contain,"  says  Bishop,  in  his  trea- 
tise on  Criminal  Procedure  (section  154),  "appears,  when  approached 
through  the  American  books,  draped  in  mist  and  girded  about  with 
darkness." 

Observing  the  proper  distinction  between  the  caption  and  the  com- 
mencement of  an  indictment,  no  valid  objection  will  be  found  to  the 
one  in  this  case.  The  caption  is  no  part  of  the  indictment.  It  consists 
wholly  of  the  history  of  the  proceedings  when  an  indictment  is  re- 
m.oved  from  an  inferior  to  a  superior  court.  As  I  have  already  stated, 
the  form  of  an  indictment  in  many  of  our  own  states,  and  which  form 
is  derived  from  England,  is  thus:    "The  jurors  of  the  people  of  the 

state  of  ,  in  and  for  the  body  of  the  county  of  ,  upon 

their  oath  present,"  etc.  This  is  the  commencement,  and  all  that  it 
need  contain.     *     *     * 

So  far,  therefore,  as  the  objections  in  this  case  go  to  the  form  of 
the  indictment,  the  latter  must  be  considered  good.  Should  an  indict- 
ment be  found  in  an  improper  manner,  or  by  an  insufficient  number 
of  jurors,  the  way  is  open  for  redress  by  motion,  which  secures  to  the 
accused  party  immunity  from  an  illegal  trial  or  punishment.  State  v. 
Batchelor,  15  Mo.  207,  208 ;  Reg.  v.  Hearne,  9  Cox,  C.  C.  433,  436 ; 
10  Jurist  (N.  S.)  724;  4  Blackstone,  238;  Bishop's  C.  P.  §  448.  *  *  * 


II.  The  Statement  oe  the  Oeeenss 

The  parts  of  an  indictment  are  many.  2.  The  strictness  required 
in  indictments  is  great,  because  life  is  in  question.  3.  Therefore  very 
nice  and  slender  exceptions  have  been  of  latter  ages  allowed,  and  they 
have  been  with  too  much  facility  quashed  and  reversed.    *    *    * 

An  indictment  is  nothing  else  but  a  plain,  brief,  and  certain  nar- 
rative of  an  offense  committed  by  any  person,  and  of  those  necessary 
circumstances  that  concur  to  ascertain  the  fact  and  its  nature.    *    *    * 


GO  THE    INDICTMENT  (Ch.  8 

1.  Regularly  every  indictment  ought  to  be  in  Latin,  as  all  pleadings 
in  the  courts  ought  to  be,  and  it  is  of  excellent  use,  because,  it  being 
a  fixed,  regular  language,  it  is  not  capable  of  so  many  changes  and 
alterations  as  happen  in  vulgar  languages.    *    *    *  2 

Regularly  false  Latin  doth  not  vitiate  an  indictment,  if  yet  the  in- 
dictment be  reasonably  intelligible,  *  *  *  as  "prsefato  Reginae," 
where  it  should  be  "prrefatse."  But  if  the  words  be  words  of  art,  and 
by  omission  or  misplacing  of  letters  become  insignificant,  they  vitiate 
the  indictment,  as  "burgariter"  for  "burglariter,"  "feloniter"  for  "felo- 
nice,"  "murdredavit"  for  "murdravit" ;  but  "burgulariter"  hath  been 
held  good.    4  Co.  Rep.  39  b.  Brooks'  Case.    *    *    * 

So  if  it  make  the  indictment  insensible  or  uncertain,  as  if  A.  and 
B.  be  indicted  for  stealing,  "felonice  cepit  et  asportavit,"  where  it 
should  be  "ceperunt,"  it  shall  be  quashed.  P.  42  Eliz.  B.  R.  Lane's 
Case,  Cro.  Eliz.  754;  so  in  an  indictment  of  murder,  the  stroke  "in 
sinistro  bracio,"  wdiere  it  ought  to  be  "brachio,"  for  it  appears  not 
where  the  wound  was,  the  words  being  insensible.  T.  31  Eliz.  B.  R, 
Webster's  Case,  Cro.  EHz.  137. 

Abbreviations  that  are  usual  are  allowable  in  indictments.  *  *  *  « 
Figures  to  express  numbers  are  not  allowable  in  indictments.    *    *    *  « 

2.  An  indictment  grounded  upon  an  offense  made  by  act  of  Parlia- 
ment must  by  express  words  bring  the  offense  within  the  substantial 
description  made  in  the  act  of  Parliament,  and  those  circumstances 
mentioned  in  the  statute  to  make  up  the  oft'ense  shall  not  be  supplied 
by  the  general  conclusion  "contra  formam  statuti."  *  *  *  If  a  man 
be  indicted  for  an  offense,  which  was  at  common  law,  and  concludes 
"contra  formam  statuti,"  but  in  truth  it  is  not  brought  by  the  indict- 
ment within  the  statute,  it  shall  be  quashed,  and  the  party  shall  not 
be  put  to  answer.it  as  an  oft"ense  at  common  law. 

2  Hale,  P.  C.  c.  XXIV. 

An  indictment  consists  of  three  parts:  The  commencement,  the 
statement,  and  the  conclusion.  *  *  *  The  commencement  of  every 
indictment  is  thus:  "Middlesex,  to  wit:  The  jurors  for  our  lady  the 
queen  upon  their  oath  present  that."    *    *    *    The  venue  in  the  margin 

2  This  was  cliansod  by  St.  4  Geo.  IT.  c.  26,  and  6  Geo.  IT,  c.  G.  which  requires 
all  indiotmenis  to  be  in  the  Eiislish  lancniase.  The  use  of  Latin,  it  is  believed, 
never  obtained  in  the  United  States.  Bishop,  New  Cr.  Proc.  3342.  See  People 
V.  Ah  Sum.  92  Cal.  G-t8,  28  Pac.  G80  (1892). 

8  St.  4  Geo.  IT,  c.  2G.  and  6  Geo.  II,  c.  6,  prohibit  abbreviations  in  indi^-t- 
ments.  See  and  cf.  United  States  v.  Reich ert  (C.  O.)  32  Fed.  142  (18S7); 
Commonwealth  v.  Desmarteau,  16  Gray  (Mass.)  1  (18G0) ;  State  v.  Jericho.  40 
Vt.  121.  94  Am.  Dec.  387  (18G8) ;  State  v.  Tvoan,  10  N.  H.  347.  34  Am.  Dec. 
•1G2  (1839).  Where  the  presence  of  abbreviations  renders  tlie  indictment 
defective,  objection  must  be  taken  before  verdict.  Commonwealth  v.  Desmar- 
teau, IG  Gray  (Mass.)  1  (ISGO). 

*  It  Is  said  to  be  the  better  practice  to  write  figures  at  length  than  to 
express  them  in  Arabic  characters;  but  the  employment  of  the  latter  will 
not  vitiate  the  indictment.  State  v.  Kaiford.  7  Port.  (Ala.)  101  (1S3S). 
Where  it  is  held  that  words  must  be  used  instead  of  figures,  the  objection  to 
the  use  of  figures  caimot  be  taken  after  verdict.  Commonwealth  v.  Jackson, 
1  Grant  Cas.  (Pa.)  2G2  (lS."3.j). 


€h.  8)  THE    INDICTMENT  61 

should  be  the  county  in  which  the  offense  was  committed;  or,  if  the 
jurisdiction  of  the  court  in  which  the  bill  of  indictment  is  to  be  pre- 
ferred extend  only  to  part  of  the  county,  or  *  *  *  include  more 
than  one  county,  or  be  confined  within  the  limits  of  a  borough,  *  *  ♦ 
the  venue  in  the  margin  should  be  coextensive  with  the  jurisdiction  of 
the  court.  This  is  the  general  rule  of  the  common  law;  but  many 
exceptions  have  been  made  to  it  by  statute. 

Archbold's  Crim.  Plead.  (13th  Ed.)  20. 

The  most  considerable  parts  of  an  indictment  in  capital  offenses  are : 
1.  The  name  and  addition  of  the  party  offending.  2.  The  day  and 
time  of  the  offense  committed.  3.  The  place  where  it  was  commit- 
ted. 4.  Upon  or  against  whom  committed.  5.  The  manner  of  the 
commission  of  it.  6.  The  fact  itself  and  the  nature  of  it.  7.  The  con- 
clusion. 

Regularly  every  indictment  ought  to  conclude  "contra  pacem  domini 
regis."  ^ 

If  an  offense  be  newly  enacted,  or  made  an  offense  of  an  higher  na- 
ture by  act  of  Parliament,  the  indictment  must  conclude  "contra  for- 
mam  statuti." 

2  Hale,  P.  C.  c.  XXV. 

If  an  indictment  do  not  conclude  "contra  formam  statuti,"  and  the 
offense  indicted  be  only  prohibited  by  statute,  and  not  by  common 
law,  it  is  wholly  insufficient,  and  no  judgment  at  all  can  be  given  upon 
it.'  But  if  the  oft'ense  were  also  an  oft'ense  at  common  law,  I  take  it 
to  be  in  a  great  measure  settled  at  this  day  that  judgment  may  be  given 
as  for  an  offense  at  common  law,  though  the  indictment  conclude  "con- 
tra formam  statuti." 

If  there  be  more  than  one  statute  concerning,  the  same  offense,  and 
the  first  of  them  was  never  discontinued,  and  the  latter  only  continue 
the  former  without  making  any  addition  to  it,  or  only  qualify  the  meth- 
od of  proceeding  upon  it,  without  altering  the  substance  of  its  purview, 
it  seems  agreed  that  it  is  safe,  in  an  indictment  upon  any  such  statute, 
to  conclude  "contra  formam  statuti";  and  it  hath  been  holden  that  a 
conclusion  "contra  formam  statutorum"  will  in  such  cases  vitiate  the 
prosecution.  *  *  *  But  where  a  statute  hath  been  wholly  discon- 
tinued, and  is  afterwards  revived,  there  seem  to  have  been  some  opin- 
ions that  a  prosecution  on  it  ought  to  conclude  "contra  formam  statu- 
torum." 

Also  where  the  same  offense  is  prohibited  by  several  independent 
statutes,  there  are  some  authorities  that  you  must  either  conclude  "con- 
tra formam  statutorum,"  or  "contra  formam"  of  the  particular  stat- 
utes, naming  them,  and  that  if  you  barely  conclude  "contra  formam 
statuti,"  the  indictment  will  be  insufficient,  for  not  showing  on  which 

B  See  Anderson  v.  State,  5  Ark.  444  (1S43) ;   Reg.  v.  Lane,  6  Mod.  128  (1704). 

6  State  V.  Soule,  20  Me.  19  (1841) ;  People  v.  Enoch,  13  Wend.  (N.  Y.)  159, 
27  Am.  Dec.  197  (1834).  Statutes  in  England  and  in  some  states  have 
abolished  the  necessity  for  the  conclusion.  Castro  v.  Reg.  14  Cox,  C.  C.  546 
(ISSl) ;    State  v.  Dorr,  82  Me.  311,  19  Atl.  861  (1890). 


02  THE    INDICTMENT  (Ch.  S 

one  of  the  statutes  it  was  taken.    But  there  are  also  strong  authorities 
for  the  contrary  opinion,  which  is  also  most  agreeable  to  precedents.^ 
2  Hawkins,  P.  C.  c.  25,  §§  116,  117. 


EVANS  V.  STATE. 

(Court  of  Criminal  Appeals  of  Texas,  1S95.    34  Tex.  Cr.  R.  110,  29  S.  W.  2G6.) 

Henderson,  j»  *  *  *  There  was  a  motion  by  defendant  to 
quash  the  indictment  on  the  ground  that  the  indictment  contained  the 
word  "possion,"  and  not  "possession,"  which  was  overruled  by  the 
court,  and  a  bill  of  exception  saved  by  the  defendant.  The  defendant 
also  objected  to  the  evidence  regarding  the  taking  of  the  clothing,  on 
the  ground  that  there  was  no  proper  allegation  in  the  indictment  char- 
ging that  same  were  in  the  possession  of  Barnard.  The  court  over- 
ruled the  objection,  and  to  this  defendant  reserved  art  exception.  The 
defendant  also  reserved  a  bill  of  exception  to  the  charge  of  the  court 
on  possession,  on  the  ground  that  there  was  no  sufficient  allegation  in 
the  indictment  to  support  such  charge. 

The  sufficiency  of  the  word  "possion,"  as  used  in  the  indictment,  in- 
stead of  the  word  "possession,"  used  in  the  statute  defining  robbery,  is 
thus  presented  for  our  consideration.  We  have  examined  the  dic- 
tionaries, and  nowhere  find  such  a  word  as  "possion,"  nor  do  we  find 
it  used  as  an  abbreviation  for  "possession"  or  any  other  word.  It  is 
not  idem  sonans  with  the  word  "possession,"  nor  can  we  consider  it 
simply  as  an  instance  of  bad  spelling.  Evidently  the  pleader  intend- 
ed to  write  in  the  indictment  the  word  "possession,"  but  with  us  it  is 
not  a  question  of  what  he  means,  but  what  did  he  do ;  and  the  word 
"possession,"  in  defining  the  offense  of  robbery,  is  material,  and  we 
cannot  supply  it  by  intendment. 

In  Jones  v.  State,  25  Tex.  App.  621,  8  S.  W.  801,  8  Am.  St.  Rep. 
449,  this  court  at  a  former  term  held  that  in  an  indictment  for  theft 
the  word  "appriate"  was  not  equivalent  to  the  word  "appropriate"  as 
used  in  the  statute  defining  theft,  and  that  its  use  vitiated  the  indict- 
ment. In  State  v.  Williamson,  43  Tex.  502,  referred  to  in  the  above 
cases,  the  very  word  "possion"  used  in  the  indictment  in  this  case 
was  used  in  the  indictment  in  that  case.  The  question  came  up  in  that 
case  on  a  motion  in  arrest  of  judgment.  The  court  in  that  case  seemed 
to  treat  the  word  as  one  of  form,  saying,  "An  objection  of  this  char- 
acter should  be  interposed  before  the  trial,  and  should  not  be  made 
the  ground  of  a  motion  in  arrest  of  judgment;"  and  yet  they  say,  "It 
cannot  be  doubted  that  the  indictment  must  aver  that  the  property- 
was  taken  from  the  possession  of  the  owner." 


T  See  U.  S.  V.  Cibort.  2  Sumn.  19,  Fed.  Cas.  No.  15,204  (1S34). 
8  I'art  of  this  ease  is  omitted. 


Ch.  8)  THE    INDICTMENT  03 

We  do  not  think  it  can  be  doubted  that  if  an  indictment  for  theft  or 
for  robbery  should  fail  to  properly  allege  the  possession  of  the  prop- 
erty taken  it  is  a  matter  of  substance,  and  of  such  materiality  that  it 
can  be  taken  advantage  of  by  motion  in  arrest  of  judgment,  as  well 
as  by  a  motion  to  quash  the  indictment ;  and  the  only  question  for  us 
to  determine  is,  does  the  use  of  the  word  "possion"  accomplish  this? 
As  before  stated,  the  word  used  is  not  idem  sonans  with  "possession," 
and  it  is  not  an  abbreviation  of  that  word,  and  we  cannot  supply  a 
proper  word  conveying  in  its  meaning  a  material  averment  in  an  in- 
dictment. If  we  were  to  undertake  to  do  so,  we  would  afford  a  bad 
precedent,  when,  by  the  rigid  adherence  to  the  rule,  those  who  draw 
indictments  will  be  encouraged  to  use  more  care  and  diligence,  and 
mistakes  will  thus  be  avoided.    *    *    * 

The  judgment  of  the  lower  court  is  accordingly  reversed  and  re- 
manded.* 


STATE  V.  COLLY. 

(St.  Louis  Court  of  Appeals,  Missouri,  1897.     G9  Mo.  App.  444.) 

Eland,  P.  J.^"  At  the  February  term,  1893,  of  the  Lawrence  coun- 
ty circuit  court,  the  defendant  was  indicted  for  a  violation  of  the  dram- 
shop law.  The  charge  was,  that  he  sold  one  bottle  of  "larger"  beer. 
The  case  was  taken  to  the  Barry  county  circuit  court  by  change  of  ven- 
ue, and  at  the  November,  1895,  term  thereof  he  filed  his  motion  to 
quash  the  indictment,  because  the  indictment  charges  the  selling  of 
"larger"  beer  (not  "lager"  beer).  This  motion  was  overruled.  A 
trial  was  had  by  the  court  sitting  as  a  jury.  Defendant  was  convicted. 
Motions  in  arrest  and  for  new  trial  were  filed  and  overruled,  bill  of  ex- 
ceptions filed,  and  appeal  taken  to  this  court. 

The  fact  that  the  pleader  used  one  "r"  too  many  in  his  spelling  of 
the  word  "lager,"  in  the  absence  of  the  fact  that  the  use  of  this  super- 
fluous letter  did  not  construct  another  word  having  a  separate  and  dif- 
ferent signification  from  the  word  "lager,"  makes  it  quite  clear  that 
it  is  a  case  of  misspelling,  which  does  not  vitiate  a  pleading,  civil  or 
criminal,  where,  as  in  this  case,  it  is  apparent  what  word  was  intended 
to  be  used,  and  where  the  word  as  spelled  has  the  same  sound  as  the 
intended  word,  when  correctly  spelled.  The  evidence  supported  the 
finding  of  the  court.  No  instructions  were  asked  or  given. 
.  We  find  no  error  in  the  record,  and  affirm  the  judgment.  All  con- 
cur.^^ 

9  Accord:  "Maice"  for  "malice."  Wood  v.  State,  50  Ala.  144  (1873).  "Lar- 
cev"  for  "larcenv."  People  v.  St.  Clair,  56  Cal.  406  (18S0).  "Farther"  for 
"father."     State  v.  Caspary,  11  Rich.  Law  (S.  C.)  336  (ISjS). 

10  Part  of  this  case  is  omitted. 

11  Accord:  "Eiget"  for  "eight."  Somerville  v.  State,  6  Tex.  App.  4.33  (1879). 
"Mair"    for    "mare."    State   v.   Myers,    85   Tenn.    203,    5   S.    W.   377    (1880). 


f]4  THE    INDICTMENT  (Ch.  8 

STATE  V.  EDWARDS. 
(Supreme  Court  of  Missouri,  1S54,     19  Mo.  674.) 

Ryland,  ^*  Judge,  delivered  the  opinion  of  the  court.  *  *  *  The 
omission  in  this  indictment  consists  of  the  neglect  to  insert  the  word 
"did"  before  the  words  "assault,  beat  and  maltreat  one  Stephen  L. 
Page,  in  the  peace  then  and  there  being,  and  other  wrongs,"  etc.,  so 
as  to  make  the  sentence  read  thus:  "With  force  and  violence,  in  a 
turbulent  and  violent  manner,  'did'  assault,  beat  and  maltreat,"  etc. 
We  are  inclined  to  think  that  this  word  "did"  may,  in  this  indictment, 
be  supplied  by  intendment. 

In  indictments  for  misdemeanors  merely,  such  intendment  is  often 
resorted  to.  The  strictness  and  rigor  in  the  construction  of  indict- 
ments for  felonies  are  not  applied  uniformly  to  indictments  for  mere 
misdemeanors.  In  the  case  of  State  v.  Haider,  2  McCord  (S.  C.)  377, 
13  Am.  Dec.  738,  the  omission  to  insert  the  word  "did"  before  the 
words  "feloniously  utter  and  publish,  dispose  and  pass"  was  held  fatal, 
and  the  judgment  was  arrested.    This  indictment  was  for  a  felony. 

In  the  case  of  State  v.  Whitney,  15  Vt.  298,  which  was  an  indict- 
ment for  a  misdemeanor,  selling  liquor  by  the  small  measure,  without 
license,  the  word  "did"  was  omitted,  which  should  have  been  joined 
with  the  words  "sell  and  dispose  of,"  This  omission  was  held  not  to 
be  fatal  on  motion  in  arrest  of  judgment.  Bennett,  J.,  in  delivering  the 
opinion  of  the  court,  said:  "In  this  indictment,  it  is  alleged  that  the 
respondent,  on  the  first  day  of  August,  A.  D.  1842,  at,  etc.,  sell  and  dis- 
pose of,  etc.  It  is  evident  the  omission  is  purely  a  clerical  one.  The 
auxiliary  verb  may  be  supplied  by  intendment." 

There  was  no  necessity  to  supply  this  auxiliary  verb  "did"  before 
one  of  the  verbs  used  in  this  sentence  above  quoted,  viz.,  the  verb 
"beat."  Leaving  out  the  words  "assault  and  maltreat,"  and  using  the 
verb  "beat"  alone,  and  the  charge  is  positive  and  direct.  The  words  in 
the  beginning  of  this  sentence,  "with  intent,"  may  be  rejected  as  sur- 
plusage. They  do  not  injure  the  indictment,  being  no  part  .of  the  de- 
scription of  the  offense,  and  may  be  stricken  out,  leaving  the  offense 
full  and  complete.  But  it  is  very  clear  that  the  words  "assault,  beat 
and  maltreat"  express  all  the  action  which  is  imputed  to  the  defend- 
ant, and  no  one  can  misapprehend  their  sense  in  the  connection  in 
which  they  are  used,  and  the  helping  verb  will  at  once  be  supplied 
by  intendment.    In  the  case  of  King  v.  Stevens  &  Agnew,  5  East,  260, 


"Assatt"  for  "assault."  State  v.  Crane,  4  Wis.  400  (1854).  ".Tanury"  for 
"January."  Ilutto  v.  State,  7  Tex.  App.  44  (1879).  "Rill"  for  "kill."  Irvin 
V.  State,  7  Tex.  App.  109  (1879).  "Fraudulently"  for  "fraudulently."  St. 
T^uis  V.  State  (Tex.  Cr.  App.)  59  S.  W.  889  (lOOO).  "Gol"  for  "gold." 
Grant  v.  State,  55  Ala.  201  (1876). 
12  Part  of  this  case  is  omitted. 


Ch.  8)  ■  THE    INDICTMENT  65 

Lord  Ellenborough  said :  "If  the  sense  be  clear,  nice  exceptions  ought 
not  to  be  regarded."  In  respect  of  this,  Lord  Hale  says  (2  Hale,  P. 
C,  193)/:  "More  offenders  escape  by  the  over-easy  ear  given  to  ex- 
ceptions in  indictments  than  by  their  own  innocence,  and  many  heinous 
and  crying  offenses  escape  by  these  unseemly  niceties,  to  the  reproach 
of  the  law,  to  the  shame  of  the  government,  and  to  the  encouragement 
of  villainy,  and  the  dishonor  of  God." 

Upon  the  whole,  it  is  the  opinion  of  this  court  that  the  judgment 
below  be  affirmed;  and,  the  other  judges  concurring,  it  is  affirmed  ac- 

STATE  V.  GILBERT. 

(Supreme  Court  of  Vermont,  1S41.    13  Vt.  G47.) 

RedfiELD,  J.^*  The  objection  to  the  use  of  the  words  Anno  Domini, 
in  the  caption  of  the  indictment,  cannot  prevail.  The  abbreviations 
A.  D.,  standing  for  these  same  words,  were  considered  sufficient  in 
an  indictment.  State  v.  Hodgeden,  3  Vt.  481.  A  fortiori,  the  words 
themselves  should  be.  These  words  have  become  literally  English  by 
adoption.  The  same  is  true  of  a  very  considerable  number  of  terms 
in  the  language.  Most  of  these  adopted  terms  have  changed  their  cos- 
tume, while  others  have  not.  "Phenomenon"  and  "memorandum"  are 
as  strictly  English  as  any  terms  of  the  most  purely  Saxon  derivation. 
Others  are  not  the  less  so  because  they  still  retain  their  foreign  dress ; 
e.  g.,  pro  tempore,  sine  die,  nemine  contradicente,  bona  fide,  Anno 
Domini,  as  well  as  ennui,  sang  froid,  beaux,  cap-a-pie,  tete-a-tete,  and 
thousands  of  others,  which  are  well  understood  by  mere  English  read' 


ers. 


«      *      *  15 


REX  V.  WHITEHEAD. 

(Court  of  King's  Bench,  1G93.     1  Salk.  371.) 

Mr.  Northey  moved  to  quash  two  indictments,  which  were  quod  cum 
an  order  was  made  that  the  parishioners  should  receive  a  bastard  child ; 
they  in  contempt  did  refuse  to  receive  it.  And  because  it  was  not  posi- 
tively said,  that  it  was  ordered  that  they  should  receive,  it,  but  only 
by  recital  with  a  quod  cum,  they  were  quashed.^* 

13  See,  also,  State  v.  Raymond,  20  Iowa.  5S2  (1S66) ;  State  v.  Whitney,  15 
Vt.  298  (1843);  Ward  v.  State,  8  Blackf.  (Ind.)  101  (1846).  Compare  McCearley 
V.  State,  97  Miss.  556.  52  South,  796  (1910),  and  State  v.  Hawkins,  155 
N.  C.  466,  71  S.  E.  326  (1911). 

1*  Part  of  tliis  case  is  omitted. 

IB  See,  also.  State  v.  Hornsby,  8  Rob.  (T.a.)  554,  41  Am.  Dec.  305  (1844). 
Cf.  State  V.  Mitchell,  25  Mo.  420  (1S.j7). 

16  Cf.  Rex  V.  Ryland,  L.  R,  I  C,  a  99  (1867);  Res  v,  Lawley,  2  Str.  904 
(1730). 

MlK.CR.PR.(ABRIDCrED  ED.) — 5 


66  THE    INDICTMENT  (Ch.  8 

BURROUGH'S  CASE. 

(Court  of  Kiug"s  Bench,  1G76.     1  Vent  305.) 

He  and  others  were  indicted,  for  that  they  being  churchwardens, 
overseers  of  the  poor,  and  he  a  constable,  did  contemptuously  and 
voluntarily  neglect  to  execute  diversa  przecepta  et  warranta,  directed 
to  them  by  the  bailiffs  of  Ipswich  (being  justices  of  the  peace)  under 
their  hands  and  seals,  etc.  It  was  moved  to  quash  it,  for  that  the  na- 
ture and  tenor  of  the  warrants  were  not  expressed  in  the  indictment ; 
for  unless  the  parties  know  particularly  what  they  are  charged  with, 
they  cannot  tell  how  to  make  their  defense. 

And  for  that  reason  it  was  quashed  by  the  court. 


REX  V.  ROBE. 

(Court  of  King's  Bench,  1725.     2  Strange,  909.) 

An  information  was  filed  against  him  for  several  illegal  exactions 
in  his  office  of  clerk  of  the  market,  and  there  were  several  counts  speci- 
fying sums  taken  of  particular  persons,  upon  all  which  distinct  char- 
ges the  defendant  was  acquitted;  but  at  the  close  of  the  information 
there  was  a  general  charge,  of  which  he  was  found  guilty,  viz.,  that 
under  color  of  his  said  office  he  did  illegally  cause  his  agents  to  de- 
mand and  receive  of  several  other  persons  several  other  sums  of  mon- 
ey, on  pretense  of  weighing  and  examining  their  several  weights  and 
measures.  Exception  was  taken,  that  this  is  so  general  a  charge,  that 
it  is  impossible  any  man  can  prepare  to  defend  himself  on  this  prose- 
cution, or  have  the  benefit  of  pleading  it  in  bar  to  any  other ;  and  for 
this  fault  the  judgment  was  arrested. 


III.  The  Conclusion 

REX  v.  CLERK. 

(Court  of  King's  Bench,  1G95.    1  Salk.  870.) 

Indictment  that  twenty  persons  being  assembled,  the  defendant,  not 
being  licensed,  preached  to  them,  not  concluding  contra  formam  stat- 
uti,  was  quashed,  for  they  might  be  the  defendant's  own  family,  to 
which  the  statute  does  not  extend,  and  it  is  not  an  offense  at  common 
law.    But  DoLBiiN  differed  in  this. 


Ch.  8)  THE    INDICTMENT  67 

ANONYMOUS. 

(Court  of  King's  Bench,   1C49.     Style,   18G.) 

The  court  was  moved  to  quash  an  indictment  against  a  baker  for 

selHng  of  bread  under  the  assize.     The  exceptions  were:    1.  That  it 

doth  not  say  what  assize,  whereas  there  be  divers  assizes  of  bread. 
*    *    * 

Roll,  Chief  Justice,  said  to  the  first  exception,  it  is  good  enough  to 
say  he  sold  the  bread  contra  assisam,  although  it  say  not  what  assize.^ ^ 


ANONYMOUS. 

(Upper  Bench,  1655.     Style,  449.) 

The  court  was  moved  to  quash  an  indictment  against  one  Peers,  for 
speaking  provoking  language  to  one,  contrarj'  to  the  late  ordinance 
of  the  Lord  Protector  and  his  council,  upon  these  exceptions ;  *  *  ♦ 
2dly.  It  is  said  by  an  ordinance  of  the  Protector,  made  such  a  day,  and 
doth  not  say  in  that  case  provided.  And  upon  these  exceptions  it 
was  quashed.^' 


ANONYMOUS. 

(Court  of  King's  Bench,  1G62.     1  Vent.  108.)    ' 

An  indictment  for  not  performing  an  order  of  the  justices  of  the 
peace  concerning  a  bastard  child.  It  was  moved  to  quash  it  because 
it  did  not  conclude  contra  pacem.  But  it  was  held  that  ought  not  to 
be  it  being  but  for  a  non  feasans.^* 

17  Part  of  this  case  Is  omitted. 

18  In  lieu  of  these  technical  words  the  following  forms  hare  been  held 
sufficient:  "Contrary  to  law."  Hudson  v.  State,  1  Blackf.  (Ind.)  317  (1824). 
[But  see  Commonwealth  v.  Stockbridge,  11  Mass.  279  (1814).]  "Contrary  to 
the  true  intent  and  meaning  of  the  act  of  Congress  of  the  United  States, 
in  such  'case  made  and  provided."  U.  S.  v.  Smith,  2  Mason,  143,  Fed.  Cas.  No. 
16,338  (1820).  Contra:  "In  contempt  of  the  laws  of  the  United  States  ol 
America."    U.  S.  v.  Andrews,  2  Paine,  451,  Fed.  Cas.  No.  14,455  (1832). 


J 


(58  THE    INDICTMENT  (Ch.  8 

IV.  Duplicity,  Repugnancy,  and  Surplusage 

SMITH  et  al.  v.  STATE. 
(Supreme  Court  of  Nebraska,  1S91.     32  Neb.  105,  48  N.  W.  823.) 

NoRVAL,  J.'"  On  the  6th  day  of  May,  1889,  the  county  attorney 
filed  in  the  district  court  of  Lancaster  county  an  information  charging 
"that  Moses  Smith  and  W.  Kief,  late  of  the  county  aforesaid,  on  the 
1st  day  of  February,  A.  D.  1889,  in  the  county  of  Lancaster  and  state 
of  Nebraska,  aforesaid,  did  unlawfully  sell,  give  away,  and  vend  spir- 
ituous, vinous,  and  intoxicating  liquors  to  Orin  Snyder,  Frank  Mar- 
tin and  P.  H.  Cooper,  and  to  other  persons  to  the  county  attorney  un- 
known, without  having  first  complied  with  the  provisions  of  the  Com- 
piled Statutes  of  the  state  of  Nebraska,  and  without  first  having  taken 
out  a  license  to  sell,  give  away,  and  vend  spirituous,  vinous,  and  intox- 
icating liquors ;  the  said  above  sales  of  spirituous,  vinous,  and  intox- 
icating hquors  by  said  Moses  Smith  and  W.  Kief,  as  aforesaid,  be- 
ing wTthout  authoritv,  and  contrary  to  the  form  of  the  statutes  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the  state 
of  Nebraska."  The  defendants  moved  the  court  to  quash  the  informa- 
tion.    *    *    * 

The  motion  to  quash  the  information  should  have  been  sustained. 
The  information  is  too  indefinite  and  uncertain.  It  contains  but  one 
count,  and  charges  that  the  defendants  sold  and  gave  away  spirituous, 
vinous,  and  intoxicating  liquors.  It  was  held  in  State  v.  Pischel,  16 
Neb.  490,  20  N.  W.  8i8,  that  the  act  of  selling  any  of  the  liquors  nam- 
ed in  section  11  of  chapter  50  of  the  Compiled  Statutes,  as  well  as  the 
act  of  giving  away  any  of  them,  without  a  license  so  to  do,  is  a  crime. 
We  adhere  to  the  rule  therein  announced.  This  case  is  not  distin- 
g-uishable  from  State  v.  Pischel.  As  the  judgment  must  be  reversed 
for  the  error  pointed  out,  it  will  not  be  necessary  to  notice  the  other 
assignments  of  error. 

The  judgment  is  reversed,  and  the  cause  remanded  for  further  pro- 
ceedings.   The  other  judges  concur.-" 

IB  Part  of  this  case  is  omitted. 

20  See  for  use  of  the  disiunctive  in  the  statement  of  an  offense,  People  v. 
Hood,  e'Cal.  2.36  (18.56);    Sims  v.  State,  135  Ala.  61,  33  South.  162  (1002). 

If  the  disjunctive  can  he  construed  to  mean  "to  -svit"  (see  State  v.  Gil- 
bert, 13  Vt.  647  [1841]),  or  if  the  disjunctive  and  what  follows  can  be  reject- 
ed as  surplusage  (State  v.  CorriRan,  24  Conn.  286  [1S55J),  the  disjunctive  al- 
legation will  not  render  the  indictment  bad. 


5  .  f\x 


^ 


Ch.8) 


THE    INDICTMENT  69 


COIMMONWEALTH  v.  TWiTCHELi;. 


(Supreme  Judicial  Court  of  Massachusetts,  Hampshire,  Franklin  and  Hamp- 
den,   1849.     4   Cush.   74.) 

MetcalF,  J."  1.  It  is  unnecessary  to  inquire,  in  this  case,  whether 
duplicity  in'an  indictment  is  a  cause  for  arresting  judgment;  because 
we  are  of  opinion  that  the  allegation,  in  this  indictment,  that  the  de- 
fendant "did  set  up  and  promote"  an  exhibition,  does  not  make  the 
indictment  objectionable  for  duplicity,  but  charges  only  one  offense. 
In  Commonwealth  v.  Eaton,  15  Pick.  273,  an  indictment,  which  al- 
leged that  the  defendant  "did  unlawfully  offer  for  sale,  and  did  unlaw- 
fully sell,"  a  lottery  ticket,  was  held  good,  on  demurrer ;  and  we  can- 
not distinguish  that  case  from  this.  So  an  indictment,  which  avers 
that  the  defendant  "did  write  and  publish,  and  cause  to  be  written 
and  published,"  a  malicious  libel,  is  not  bad  for  duplicity.  2  Gabbett, 
Crim.  Law,  234 ;  3  Chit.  Crim.  Law  (4th  Am.  Ed.)  877,  et  seq.    *    •    * 

Exceptions  overruled. ^^ 


SPROUSE  V.  COMMONWEALTH. 

(Supreme  Court  of  Appeals  of  Virginia,  1SS6.    81  Va.  374.) 

Lacy,  J.,  delivered  the  opinion  of  the  court.-^  *  *  * 
The  first  assignment  of  error  here  is  to  the  ruling  of  the  county 
court  in  refusing  to  quash  the  indictment.  That  the  said  indictment 
is  double  and  presents  a  case  of  duplicity  in  pleading;  that  the  forgery 
of  the  check  was  one  offense,  and  the  forgery  of  the  indorsement  was 
another  offense,  and  that  two  distinct  oft'enses  were  contained  in  the 
same  count ;  that  the  forgery  of  the  check  alone  was  an  indictable  of- 
fense—citing Perkins'  Case,  7  Grat.  651,  56  Am.  Dec.  123 ;  that  the 
forgery  of  the  indorsement  was  an  indictable  offense — citing  Powell's 
Case,  11  Grat.  822 ;  and  that  the  said  second  count  is  liable  to  the  same 
objection,  and  is  equally  defective. 

Duplicity,  or  double  pleading,  consists  in  alleging,  for  one  single 

21  Part  of  this  case  is  omitted. 

2  2  See.  also,  Wein  v.  State,  14  Mo.  125  (1851);  Wessels  v.  Kansas,  McCahon 
(Kan.)  100  (1860) ;    Cobb  v.  State,  45  Ga.  11  (1872). 

"When  one  count  in  an  indictment  charges  two  ofifenses,  distinct  in  kind 
and  requiring  distinct  punishments,  the  objection  of  duplicity  has  been  allow- 
ed in  arrest  of  judgment  Commonwealth  v.  Symonds,  2  Mass.  163 ;  State  v. 
Nelson.  8  N.  H.  163 ;  People  v.  Wright,  9  Wend.  (N.  Y.)  193.  But  when  the 
two  offenses  are  precisely  alike,  the  only  reason  against  joining  them  in  one 
count  is  that  it  subjects  the  accused  to  confusion  and  embarrassment  in  his 
defense.  The  objection  is  not  open  after  a  verdict  of  guilty  of  one  offense 
only,  but  must  be  taken  by  motion  to  quash,  or  to  compel  the  prosecutor  to 
confine  himself  to  one  of  the  charges."  Gray,  C.  J.,  in  Commonwealtli  y. 
Holmes.  119  Mass.  195  dST.".). 

«»  Part  of  this  case  is  omitted 


70  THE    INDICTMENT  (Ch.  8 

purpose  or  object,  two  or  more  distinct  grounds  of  complaint,  when 
one  of  them  would  be  as  effectual  in  law  as  both,  or  all.  This  is  a 
fault  in  all  pleading,  because  it  produces  useless  prolixity,  and  tends 
to  confusion,  and  to  the  multiplication  of  issues.  This,  however,  is 
only  a  fault  in  form.  The  criminal  law  does  not  permit  the  joinder  of 
two  or  more  offenses  in  one  count. 

We  must  consider  what  are  two  or  more  distinct  offenses  within 
the  rule  just  stated.  It  is  not  an  objection  to  an  indictment  that  a  part 
of  the  allegations  might  be  lopped  off  and  the  indictment  remain  suf- 
ficient ;  and,  although  the  charge  might  be  branched  out  into  two  of- 
fenses, if  the  whole  be  but  parts  of  one  fact  of  endeavor,  all  the  parts 
may  be  stated  together.  Of  this  there  are  familiar  illustrations.  An 
accused  might  be  charged  with  selling  the  dift'erent  kinds  of  liquor 
contrary  to  law.  The  sale  of  each  kind  would  be  an  indictable  of- 
fense, yet  an  indictment  setting  forth  a  violation  of  the  law  in  selling 
all  could  not  be  said  to  charge  several  distinct  offenses.  A  man  may  be 
indicted  for  the  battery  of  two  or  more  persons  in  the  same  count,  yet 
the  battery  of  each  was  an  offense ;  yet  they  may  be  charged  together, 
because  they  are  but  parts  of  one  endeavor — the  offense  against  the 
commonwealth  being  the  breach  of  the  peace.  Or  a  libel  upon  two  or 
more  persons,  when  the  publication  is  one  single  act,  may  be  charged 
in  one  count  without  rendering  it  bad  for  duplicity  under  the  rule  stat- 
ed above.  Or  in  robbery,  with  having  assaulted  two  persons,  and  stol- 
en from  one  one  sum  of  money,  and  from  the  other  a  different  sum,  if 
it  was  all  one  transaction.  Or  where  two  make  an  assault,  with  an 
intent  to  kill,  with  different  weapons,  they  may  be  charged  jointly  in 
one  count.  And  if  a  man  shoots  at  two  persons  to  kill  either,  regard- 
less of  which,  he  may  be  convicted  on  a  charge  of  a  joint  assault,  yet 
either  assault  was  an  offense. 

And,  as  was  asked  by  an  English  judge:  "Cannot  the  king  call  a 
man  to  account  for  a  breach  of  the  peace  because  he  broke  two  heads 
instead  of  one?  How  many  informations  have  been  for  libels  upon 
the  king  and  his  ministers?  "    Rex  v.  Benfield,  2  Burrows,  980. 

In  Barnes  v.  State,  20  Conn.  232,  Waite,  J.,  said  upon  this  ques- 
tion :  "l^Q  maftprs,  however  multifarious.  wJILoueiate  to  make  a  decla- 
ratiqn_ox-JrifQrmati0a -double,  provided  that  all  tnkcn  together  con-, 
stijtiitc  but  one  connected  charge  or  one  transaction."  And  Mr.  u  Is  nop 
says  this  ol)scrvalion  may  l)c  accepted  as  expressing  the  common  doc- 
trine, when  we  add  to  it  the  words:  "Provi.ded^_alaQjJ:hat  in  any  view 
whicliJLlie. law  could  take  of  the  one  transaction,  it  may  be  regarded  as 
consjiititing  but^ii£_M£uS£;:l^^xiting  "th'g-'c^rse  v.  ^tater- 

24  N.  J.  Law,  30-32,  where  it  was  held  that  a  conviction  on  an  in- 
dictment charging  assault,  battery  and  false  imprisonment  was  not 
bad  for  duplicity,  because,  as  was  said  by  Potts,  Judge:  "Tjjp  a^Qnnlt-, 
tlie  battery,  the  false  imprisonment,  though  in  th e mselves,  separalel y 
rnnV4i"rftf]  thfy  nrf  diitinr»  '^^^'Tlg'^gf  y^^^r  <'"'iectiveiy.  tli~ 
but  one  ctCF^nse:*'" 


Ch.  8)  THE    INDICTMENT  ,  71 

Multiplication  of  authority,  or  of  argument,  cannot  be  necessary  on 
this  point,  and  we  will  conclude  this  question  with  a  remark  of  Baron 
Parke,  who  said  to  counsel:  "Your  objection  would  apply  to  every 
case  of  a  burglary  and  a  larceny.  There  would  be,  first,  the  burglary; 
secondly,  the  larceny;  thirdly,  the  compound  or  simple  larceny;  fourth- 
ly, the  stealing  in  a  dwelling  house."  When  Tindal,  Chief  Justice,  add- 
ed :  "This  is  one  set  of  faults.  It  is  all  one  transaction.  The  prisoner 
could  not  have  been  embarrassed."  Rex  v.  Bowen,  1  Denison's  Crown 
Cases,  22;  Archbold  Crim.  PI.  (13th  London  Ed.)  p.  54. 

In  this  case  the  prisoner  was  charged  with  forging  a  check  payable 
to  Gibson,  and  then  forging  Gibson's  name  on  the  back.  This  appears 
to  be  one  transaction,  a  forgery,  looking  to  the  prejudice  of  another's 
right,  a  single  fact  of  one  endeavor ;  and,  as  was  said  by  Tindal,  C. 
J.,  supra:  "This  is  one  set  of  facts.  It  is  all  one  transaction.  The 
prisoner  could  not  have  been  embarrassed."  We  think  there  was  no 
defect  in  the  indictment,  and  the  motion  to  quash  was  properly  over- 
ruled.    *    *     * 

Judgment  affirmed.'^*  \     "'' 

HUME  V.  OGLE. 

(Court  of  Queen's  Bench,  1590.     Cro.  Ellz.  lOG.) 

Appeal  of  the  death  of  her  husband.  And  declares,  that  the  defend- 
ant, such  a  day,  at  West  Lilburne  in  the  said  county,  gave  him  a  mor- 
tal wound,  of  which,  at  Wetwood  in  the  said  county,  he  languished, 
and  the  same  day  there  died ;  and  so  the  said  defendant,  the  same  day 
and  year,  at  West  Lilburne  aforesaid,  her  said  husband  modo  et  forma 
praedict'  murdravit.  And  although  not  guilty  pleaded,  and  issue  joined 
upon  it,  yet  he  waived  it,  and  demurred  upon  the  declaration  (as  it  was 
clearly  held  by  The  Court  he  might).  For  if  the  declaration  be  not 
good,'  it  is  in  vain  to  proceed  to  a  trial ;  yet  it  was  clearly  held,  that 
it  is  not  peremptory  to  the  defendant;  for  if  it  be  adjudged  against 
him,  it  is  but  a  respondeat  ouster.  And  the  cause  of  the  demurrer  was, 
that  the  death  is  supposed  to  be  at  Wetwood,  and  yet  the  murder  is 
supposed  to  be  at  West  Lilburne.  whicIiJs,„i:Qntrar:^-.ajQjl,-Cannot  be ; 
for  altliough  the  strrT:c  i?  sii]^]iosed  to  be  at  West  Lilburne,  yet  it  is 
noTfelony  till  liT^'clcath.  which  was  at  Wetwood,  and  there  the  mur- 
der  is  supposed  to  be  done;  and  the  Case  of  ITcydcn,  4  Co.  41,  v.-as 
cy^i.  An3  as  the  indictment  there  was  insufficient  for  the  time,  so 
here  for  the  place,  which  is  more  material ;  for  from  this  the  venire 
shall  come;  but  if  it  had  been,  et  sic  murdravit  modo  et  forma  prae- 
dicta,  it  had  been  good.  And  Jve_said,  divers  of  the  ancient  precedents 
are,  that  the  murder  is  supposed  to  be  where  the  stroke  was. — Unt  Ihe 
JusrTcE^'IieTa^'clearly,  that  the  indictment  was'tlLf  tor  of  necessity  it 
must  be  at  the  place  of  his  dearth.     And  although  the  precedents  are 

2*  Compare  Reed  v.  State,  88  Ala.  36,  6  South.  840  (18S9). 


72  THE    INDICTMENT  (Ch.  8 

SO,  yet  they  did  pass  sub  silentio,  and  were  not  well  examined,  and 
not  to  be  regarded,  as  Heyden's  Case ;  and  it  was  resolved,  that  there 
was  no  difference  between  the  cases;  and  adjudged,  that  the  apical 
did  abate.  ""       "  '""     *«*-'-*-*"- 

STATE  V.  SALES. 

(Supreme  Court  of  Louisiana,  1878.     30  La.  Ann.  916.) 

Egan,  J.^'  George  Sales  was  indicted  for  the  murder  of  one  Tay- 
lor. In  the  same  indictment  it  was  also  charged  "that  one  Dan  ProfHt, 
one  William  Sales,  and  one  Edward  Ryan,  with  force  and  arms,  did 
feloniously,  willfully,  and  of  their  maHce  aforethought  [did]  assist 
and  abet  the  said  George  Sales  in  the  killing  and  murdering  the  said 
William  Taylor  aforesaid,"  etc.  "Therefore  [the  grand  jury]  do  find 
and  present  the  said  Dan  Profifitt,  William  Sales,  and  Edward  Ryan, 
as  aforesaid,  being  accessory  before  the  fact  of  the  killing  and  murder- 
ing the  aforesaid  AVilliam  Taylor."  *    *    * 

As  to  the  second  ground  of  the  motion  in  arrest,  we  think  the  ob- 
jection to  llie- indictment  fatal.  The  accused  Proffitt  was  evidently 
intended  to  be  indicted  as  accessory  before  the  fact,  but  the  statement 
in  the  indictment  that  he  did  with  force  anH"afms  willfully  and  feloni- 
ously and  with  malice  aforethought  "assist  and  abet"  the  killing  and 
murdering  is  wholly  inconsistent  with  the  charge  of  being  a'cccrssory 
either  before  or  after  the  fact,  and  one  so  charged  cannot  be  indicted 
as  accessory.  State  V.  White,  7  La.  Ann.  531;  Chitty's  Grim.  Law, 
'YIJS^'2G9;'  State  v,  Maxent,  10  La.  Ann.  743.  An  accessory  before 
the  fact  is  one  who,  being  absent  at  the  time  of  the  commission  of 
the  crime  (and  of  course  being  unable  to  "assist  and  abet"  in  its  com- 
mission), doth  yet  procure,  counsel,  or  command  its  commission.  1 
Hale's  Pleas  of  the  Crown,  p.  616. 

The  indictment  is  therefore  bad  for  this  reason,  and  as  it  attempts 
to  charge  the  accused  as  accessory  before  the  fact  in  terms  it  is  also 
bad  as  an  indictment  against  Profifitt  as  a  principal  offender,  as  he 
could  not  be  both  absent  and  present  at  the  same  time,  and  without 
being  present  could  not  be  a  principal  in  the  murder.  Besides,  the 
indictment  contains  but  one  count,  and  even  if  both  crimes  were  con- 
sistent and  otherwise  properly  charged,  it  would  be  bad  for  that  rea- 
son also. 

The  motion  in  arrest  of  judgment  must  prevail.     *     *     *  20 

25  Part  of  this  case  is  omitted. 

26  See,  also,  Jones  v.  State,  63  Ala.  27  (1879). 


Ch.8) 


THE    INDICTMENT 


7» 


STATE  V.  DANDY. 

(Constitntional  Court  of  South  Carolina,  1801  1  Brev.  395.) 
This  was  an  indictment  for  a  misdemeanor,  charged  to  have  been 
committed  by  the  defendant  in  compounding  a  felony,  and  was  tried 
before  Trezevant,  J.  The  felony  staled  in  the  indictment  was  for  pass- 
in^^3_rnnnterfeit  bank  bill,  which  was  charged  to  have  been  commit- 
ted^  the  5th  day  of  November,  lfcU3. 


The  indictment  then  statj 


ffr^P"^erwards.  to  wit,  on  the  1st  day  of  June,  1800,"  the  said  felony 
was  compounded.     The  prisoner  was  found  guilty;    and  now  a  mo- 
tfon  was  ■Brought  forward  in  this  court  in  arrest  of  judgment. 
"Ter  Curiam.    The  indictment  is  absurd.    It  is  impossible  that  the 
defendant  could  be  guilty  of  the  offense  as  charged. 
Judgment  arrested.^ ^ 


REX  V.  MORRIS. 

(Court  of  King's  Bench,  1774.     1  Leach,  109.) 

Robert  Edwards  was  tried  before  Mr.  Justice  Ashhurst,  at  the  Old     / 
Bailey,  in  September  session,  1774,  for  robbing  Thomas  Morgan  on    t-jAj- 
the  highway  of  a  gold  watch,  chain,  and  seals ;   and  the  same  indict- 
ment charged  "that  Francis  Morris  the  goods  and  chattels  above  men- 
tioned,  so  as  aforesaid  feloniously  stolen,  taken,  and  carried  away,  te- 
loniously  did  receive. and. have;  he  the  said  Thomas  Morris,  then  and-* 
there,  well  knowing  the._said  goods  and  cliattels  last  mentioned  to  have  " 
been  feloniQusIy. stolen,  taken,  and  carried. aA'ySyT 


-.le^isoners  were  found  guilty;  but  it  was  moved  in  arrest  of 
judgment  that,  the  indictment  having  alleged  that  Francis  Morris  had 
received  the  property,  and  that  Thomas  Morris  knew  it  to  have  been 
stolen,  the  conviction  could  not  be  supported  as  against  the  accessory, 
for  that  the  fact  of  receiving  and  the  knowledge  of  the  previous  fel- 
ony must  reside  in  the  same  person ;  whereas  the  indictment  charged 
them  in  two  different  persons,  one  of  the  name  of  Francis,  and  the 
other  of  the  name  of  Thomas. 

Tli&^point  was  reserved  for  the  opinion  of  The  Twelve  Judges, 
upon  the  following  question :  Whether  the  words  "the  said  Thomas 
Morris,"  could  be  rejected  as  surplusage?  and  they  were  unanimous 
that,  as  the  injjLctment  would  be  sensible  and  good  without  these 
words,  they  might  be  struck  out  as  superabundant  and  unnecessary. 

27  Where  tlie  repugnant  averments  are  not  material,  and  tlu'  ii!(.lictm''nt  is 
otherwise  good  vritliout  tliem,  they  may  be  rejected  as  siirrlusa.Lce.  See  1 
ChTtrTr.  Law,  17.3. 

"No  indictment  •  •  •  shall  be  deemed  invalid  *  •  *  for  any  sur- 
plusage or  repugnant  allegation,  when  there  is  sufficient  matter  alleged  to 
indicate  the  crime  and  person  charged.  ♦  *  *  "  Rev.  St  Mo.  §  1821.  See 
State  V.  Chamberlain,  89  Mo.  129,  1  S.  W.  145  (1886). 


74  THE    INDICTMENT  (Ch.  8 

FULFORD  V.  STATE. 

(Supreme  Court  of  Georgia,  1874.    50  Ga.  591.) 

Trippe,  T-"^  The  indictment  in  this  case  not  only  charged  the  de- 
fendant, asprincipal  in  the  jecond  degree,  in  being  present,  aiding  and 
abetting  the  chief  perpetrator  of  the  alleged  offense,  but  pfoc^cT^ 
further  and  specified  the  acts  whereby  the  aiding  and  abetting  were 
done.  The  prosecuting  counsel,  on  motion,  struck  these  descriptive 
averments  from  the  indictment,  over  the  objection  of  defendant. 

We_r.ecfig;nize  the  rule  that  it  is  not  necessary  to  prove  allegations 
in  an  indictment  whTdfai^Tmmaferial  or  purely  surplusage7''"'But'"tiTC 
question  is,  what  are  immaterial  averments?  Or,  rather,'  wlien  do 
averments  which  might  have  been  omitted  become  material — or,  at 
least,  so  enter  into  the  indictment  as  framed  that  they  cannot  be 
stricken  or  rejected  as  surplusage?  Starkie  on  Evidence,  vol.  3,  p. 
1539,  says  m^'S' most  general  rule  that  no  allegation,  which  is-4escrip- 
tive  of  the  identity  of  that  which  is  legally  essential  to  the" claim  or" 
charge,  can  ever  be  rejected;  and  on  page  1542,  same  volume,  makes 
it  more  specific  by  restating  the  rule  thus :  "The^^P^ition  that  descrip- 
tive averments  cannot  be  rejected  extends  to  all  allegations  which  op- 
erate by  way  of  description  or  limitation  of  that  which  is  material," 
Bishop  says:  "If  the  indictment  sets  out  the  offense  as  done  in  a  par- 
ticular_ffi.ay^.lh.e.-prjaQf  must  show  it  so,  or  there  will  be  a  variance. 
And  where  there  is  a  necessary  allegation  which  cannot  be  Tejerted, 

2  8  The  statement  of  facts  is  omitted. 

"The  indictment  is  sufficient  under  the  criminal  procedure  act,  and  the 
motion  to  quash  was  rightfully  refused.  It  does  not  furnish  sufficient  in- 
formation to  enable  the  defendant  to  prepare  his  defense,  and  this  may  often 
occur  where  the  law  declares  an  indictment  good,  'which  charges  the  crime 
substantially  in  the  language  of  the  act  of  assembly  prohibiting  the  crime,  and 
prescribing  the  punishment,  if  any  such  there  be.  or,  if  at  common  law,  so 
plainly  that  the  nature  of  the  offense  may  be  easily  understood  by  the  jury.' 
Prior  to  1860,  when  greater  particularity  was  required  in  setting  out  the 
offense  in  the  indictment,  it  sometimes  failed  to  give  tlie  defendant  such  notice 
as  he  was  entitled  to,  of  the  specific  matters  which  would  be  attempted  to  be 
proved  against  him  on  the  trial.  Whenever  such  is  the  case,  the  accused 
may  apply  to  the  court  or  judge  for  an  order  that  a  bill  of  particulars  be  filed, 
and  on  the  trial  the  commonwealth  will  be  restricted  to  the  proof  of  the  items 
contained  therein.  Rex  v.  Hodgson,  3  C.  &  P.  422;  Rex  v.  Bootynian.  5  C. 
&  P.  .300:  Commonwealth  v.  Snelling,  15  Piclc.  (Mass.)  321.  Doubtless,  had 
the  defendant  made  application,  a  bill  of  particulars  would  have  been  ordered. 
In  simplifying  indictments,  it  was  not  the  intendment  to  make  their  br'ef 
and  comprehensive  terms  a  cover  for  snares  to  be  sprung  on  the  accused. 
Whether  a  refusal  to  order  the  bill  would  l)e  a  subject  of  review  is  a  ques- 
tion not  now  raised."  Trunkey,  J.,  in  Williams  v.  Commonwealth,  91  Pa. 
502  fl.STO). 

"The  application  [for  a  bill  of  particulars]  Is  one  addressed  to  the  discretion 
of  the  court,  and  its  action  thereon  is  not  subject  to  review."  Brown,  J.,  in 
Dunlop  V,  United  States,  1G5  U.  S.  401,  17  Sup.  Ct.  376,  41  L.  Ed.  709  (ISOfi). 

"He__wbo   has  furnished  a   bill  of  pM  *     *     «     musr    ho  '•onfined 

to  tjie^ mi£licuTafs~Re  has  speeiTTMTn^s  r  <!  offoctuany  as  if  tli 'y  con- 

strtuted  essuntiar  altegatfons  in  a  sperini  ii  •<  i.uaiiuu."     Merrick,  J.,  ln"~emii^ 
monwealth  v.  Giles,  1  Gray  (Mass.)  4C9  (lS5ij. 


Ch.  8)  THE    INDICTMENT  75 

yet  the  pleader  makes  it  unnecessarily  minute  in  the  way  of  descrip- 
tion, the  proof  must  satisfy  the  description  as  well  as  the  main  part, 
since  the  one  is  essential  to  the  identity  of  the  other."  1  Bishop's  C. 
P.  §§  234,  235.  If  the  prosecutor  state  the  offense  with  unnecessary 
particularity,  he  wilTBe  bound  By  that  statement,  and  must  prove  it 
as  laid.  United  States  v.  Brown,  3  McLean,  233,  Fed.  Cas.  No.  14,- 
G66;  Rex  v.  Dawlin,  5  T.  R.  311. 

In  the  case  in  3  McLean,  the  indictment  charged  the  postmaster 
with  stealing  a  letter  containing  certain  bank  notes.  It  was  held  that 
the  averment  as  to  the  bank  notes  might  have  been  omitted,  arrd  arr-^  - 
offense  vv^rs" charged  without  those  words;  but,  being  in,  they  must 
be  proved.  So  in  United  States  v.  Porter,  3  Day,  283,  Fed.  Cas.  No." ' 
16,074,  the  charge-was  stopping  the  mail,  with  an  averment  of  a  con- 
tract between  the  Postmaster  General  and  the  carTtHT: — Th5tigh"ElTis 
averment  was  jiot_necessary  to  the  indictment,  it  was  adjudged  that  it 
must  be  proved.    In  State  v.  Copp,  15  N.  H.  212,  the  defendant  was 

indicted  for  resisting  the  sheriff  legally  appointed  and  duly  qualified. 

Although  the  appointment  and  qualification  might  have  been  omitted,  / 
it  was  held  that  it  was  necessary  to  establish  them  by  testimony. J 
Where  the  statute  made  it  penal  to  sell  spirituous  "or"  intoxicating 
liquors,  and  the  charge  was  the  selling  of  spirituous  "and"  intoxicat- 
ing liquors,  the  prosecutor  was  bound  to  show  the  liquor  to  be  both 
spirituous^ and  intoxicating.  Commonwealth  v.  Eagan,  4  Gray  (Mass.) 
18.  See  Commonwealth  v.  Varny,  10  Cush.  (Mass.)  402;  Common- 
wealth V.  Butcher,  4  Grat.  (Va.)  544;  United  States  v.  Keen,  1  Mc- 
Lean, 429,  Fed.  Cas.  No.  15,510. 

These  decisions  agree  with  the  rule  as  quoted  from  Bishop  and 
Starkie.  The  confusion  that  grows  out  of  applying  it  may  be  avoided 
by  observing  the  qualification  of  it,  or  rather  the  statement  of  another 
rule  given  by  Bishop,  Chitty,  and  Phillips.  Chitty  (1  Criminal  Law, 
294,  295),  says:    "If  anyurmecessaQr^axerme^^^^  with  the 

circumstances  which  constitute  the  stated  crime,  be  introduced,  they 
need  not  be  proved,  but  may  be  rejected  as  surplusage."  See,  also,  1 
Chancery  Pleadings,  263.  Bishop  and  Phillips  state  this  rule  to  be,  if 
the  entire  averment  may  be  omitted  of  which  the  descriptive  matter 
is  a  part,  or  can  .be.xejected  as  surplusage,  then  the  descriptive  mat- 
ter falls  with  it  and  need  not  be  proved.  Phillips'  Evidence  (8th  Ed.) 
854;  1  Bishop,  Criminal  Proceedings,  §  235.  Or,  as  it  is  put  in  3  Mc- 
Lean, supra,  if  the  averment  be  mere  facts  disconnected  with  the  of- 
fense, they  need  not  be  proved.  See,  also,  on  this  distinction  in  the 
rule.  State  v.  Copp,  15  N.  H.  212. 

These  authorities  show  the  line  between  material  and  immaterial  "^ 
averments,  and  where  those  which  might  have  been  omitted,  'when  ( 
once  introduced,  become  an  important  part  of  the  indictment,  and  can-    T 

nol:T)e'  rejected^' as  surplusage  or  stricl^en  out,  bliF~musrbe  prov ed .^^ J 

And  there  is  reason  and  justice  in  the  distinction.  Take  this  case.  It 
was  not  necessary  that  the  pleader  should  have  stated  the  acts  of  tlie 


76  THE    INDICTMENT  (Cll.  8 

defendant  which^  constituted  his  "aiding-  and  abetting,"  or  to  define 
how  it  was  done.  The  "aiding  and  abetting"  was  an  essential  "aver- 
ment. The  defendant  was  charged  with  so  doing  "by  pushing,  strik- 
ing, assaulting  and  threatening  the  said  J.  A.  Conway."  He  was  put 
on  notice  that  it  would  be  proved  on  him  that  he  did  these  things.  He 
proposes  to  meet  the  charge,  and  to  show  that  he  did  not  push,  strike, 
assault  or  threaten  the  said  Conway.  The  .aiding-  and  abetting  may 
be  made  out  by  proving  many  other  ways  in  which  it  may  be  done, 
totally  foreign  to  tliose  set  forth  in  the  indictment.  The  prosecution, 
knowing  this,  proposes  to  strike  out  all  these  descriptive  averments 
and  leave  an  open  field  for  any  and  all  proof  of  any  and  all  forms  or 
ways  in  which  the  aiding  and  abetting  may  be  shown.  This  would  be 
permitting  a  defendant  to  be  called  upon  to  meet  a  charge  specifically 
made  in  one  form  and  then  to  allow  him  to  be  convicted  by  a  change 
of  the  indictment  on  proof  of  acts  totally  distinct  from  those  of  which 
he  was  notified.  It  is  hard  enough  that  a  defendant  may  be  convicted 
on  a  general  averment  of  "aiding  and  abetting,"  without  subjecting 
him,  after  specific  acts  are  charged,  to  the  hazard  of  having  them 
stricken  after  he  may  have  prepared  to  meet  them  as  made,  and  to  a 
conviction  for  acts  of  any  kind  that  the  prosecution  may  see  fit  to 
produce.  We  do  not  think  it  can  be  done  on  principle  or  authority. 
Judgment  reversed. 


Ch.  9)  THE   INDICTMENT  77 

CHAPTER  IX 
THE  INDICTMENT-CONTINUED 


SECTION  l.*^PARTICULAR  AVERMENTS 

I.  Avi;rmenx  of  Facts  and  Circumstances  Neccessary  to  Consti- 
tute THE  OFFENSli 


REX  V.  STRIDE. 

(High  Court  of  Justice,  King's  Bench  Division  [1908]  1  K.  B.  617.) 

I<ord  Alverstone,  C.  J.^  This  case  raises  a  question  of  very  great 
interest  and  importance  with  respect  to  the  averments  which  it  is  nec- 
essary that  an  indictment  should  contain.  Two  persons  were  indicted, 
one  a  keeper  named  Stride,  for  steaUng,  and  the  other  a  man  named 
Millard,  for  receiving  a  quantity  of  pheasants'  eggs,  and  the  main 
point  which  has  to  be  decided  is  whether  the  indictment  sufficiently 
avers  that  the  eggs  were  the  subject  of  larceny.     *     *     * 

We  now  come  to  the  main  objection,  which  was  taken  to  both  counts 
of  the  indictment.  It  was  contended  that  they  are  bad  in  that  they 
do  not  allege  that  the  pheasants'  eggs  in  question  had  been  reduced 
into  the  possession  of  Sir  Walter  Gilbey  at  the  time  of  the  stealing. 
It  was  not,  indeed,  disputed  by  counsel  for  the  defendants  that  if  a 
keeper  is  employed  by  his  master  to  collect,  either  himself  or  by  the 
underkeepers,  the  wild  pheasants'  eggs,  and  does  collect  them  and  have 
them  in  possession  on  behalf  of  his  master,  those  eggs,  if  subsequently 
stolen,  would  be  the  subject  of  larceny;  but  it  is  said  that  the  indict- 
ment ought  to  contain  some  expression  to  show  that  they  had  been 
collected  from  the  wild  pheasants'  nests. 

The*  question  is  whether  the  indictment  as  it  stands  is  sufficient. 
The  indictment  charges  that  Stride  "one  thousand  pheasants'  eggs  of 
the  goods  and  chattels  of  and  of  and  belonging  to  Sir  Walter  Gilbey 
feloniously  did  steal."  Now  I  ask  myself  whether  that  averment  does 
not,  when  read  fairly,  involve  the  necessity  of  those  eggs  having  been 
already  collected.  In  the  first  place,  having  regard  to  the  large  quan- 
tity of  eggs  alleged  to  have  been  stolen,  no  one  reading  the  indictment 
could  possibly  think  that  the  charge  related  to  the  taking  of  the  eggs 
when  in  the  nest ;  and,  in  the  second  place,  in  addition  to  the  ordinary 
formal  words  "of  the  goods  and  chattels  of,"  we  find  the  words  "and 

1  Part  of  this  case  is  omitted 


78  THE    INDICTMENT  (Ch.  9 

of  and  belonging  to."  It  was  said  that  the  latter  words  were  sur- 
plusage, as  being  merely  another  way  of  saying  the  same  thing  over 
again.  But  I  do  not  take  that  view.  I  think  that  the  words  "and  of 
and  belonging  to"  may  fairly  mean  that  the  eggs  "had  been  collected 
by  or  on  behalf  of."  Looking  at  the  indictment  as  a  whole,  I  should, 
apart  from  authority,  be  prepared  to  hold  that  it  sufficiently  charges 
that  the  eggs  had  been  reduced  into  possession  to  satisfy  the  strictest 
rule  of  criminal  pleading. 

It  has  been  argued  that  there  are  authorities  to  the  contrary.  The 
principal  of  these  was  Rough's  Case,  2  East,  P.  C.  607,  the  correct- 
ness of  the  report  of  which  I  have  been  able  to  verify  by  reference  to 
the  original  MS.  of  Buller,  J.,  from  which  the  report  is  taken.  The 
prisoner  there  was  convicted  of  stealing  "a  pheasant,  value  40s.,  pf 
the  goods  and  chattels  of  H.  S."  There  were  no  additional  words  in 
the  indictment  there.  The  judges  were  all  agreed,  "after  much  de- 
bate and  difference  of  opinion,"  that  the  conviction  was  bad  on  the 
ground  that  "in  cases  of  larceny  of  animals  ferae  naturae  the  indict- 
ment must  show  that  they  were  either  dead,  tame,  or  confined ;  other- 
wise they  must  be  presumed  to  be  in  their  original  state ;  and  that  it  ' 
is  not  sufficient  to  add  'of  the  goods  and  chattels'  of  such  an  one." 
But  that  case  does  not  appear  to  me  to  be  an  authority  in  favor  of  the 
present  defendants.  For  there  was  no  suggestion  on  the  face  of  the 
indictment  that  the  pheasant  was  other  than  a  wild  pheasant.  It  con- 
tained no  statement  that  it  was  "of  and  belonging  to  H.  S.,"  or  any 
other  words  to  suggest  that  it  had  in  fact  been  reduced  into  possession. 

It  seems  to  me  that  when  you  get  a  state  of  facts  on  the  face  of  the 
indictment,  as  in  the  present  case,  which  is  only  consistent  with  the 
articles,  which  are  alleged  to  have  been  stolen,  having  been  reduced 
into  possession,  it  would  be  extremely  artificial  to  say  that  that  natural 
inference  must  be  rejected  because  the  articles  under  certain  other  cir- 
cumstances might  not  be  the  subject  of  larceny.    J_thinkthatif  we 
were  to  take  any  other  view  of  the  present  indictment  thrm  thai  which- 
we 'do  our  deci.sion  would  more  properly  "belong  to  a  time   \v]kmi;"~ 
as  Lord  Russell  of  Killowen  observed  in  Reg.  v.  Jameson,   [ISOG]   2 
0.  -B-.  425,  "the  right  and  justice  and  substance  of  the  thing  we re^ 
sacrificed  to  the  science  of  artificial  statement."     *     *     *  "*" 

The  objection  to  the  indictment  therefore  fails,  and  the  conviction 
must  be  affirmed. 

1  desire  to  add  that  I  dissent  from  the  proposition  contended  for  by 
Mr.  Rawlinson  that  the  taking  of  birds'  eggs  directly  from  the  wild 
nests  amounts  to  larceny.  Whatever  other  oflfense  such  an  act  may 
involve,  it  cannot,  in  my  opinion,  support  a  charge  of  larceny.^ 

2  Laurance,  J.,  concurred,  and  Ridley,  Darling,  and  Channell,  JJ.,  delivered 
concurring  opinions  which  are  omitted. 

In  indictments  for  arson,  larceny,  burglary,  and  rape,  the  words  "burned," 
"took,"  "burglariously,"  and  "ravished"  are  necessary,  in  indictments  at  com- 
mon law.     1   Chitty,  Cr.  L.  242  et  seq.     In  un  indictment  for  a  felony,  the 


Ch.  9)  THE    INDICTMENT  79 


STATE  V.  KEERU 

(Supreme  Court  of  Montana,  1904.     29  Mont.  508,  75  Pac.  3G2,  101  Am.  St 

Rep.  579.) 

Callaway,  C  The  defendant  has  appealed  from  a  judgment  find- 
ing him  guilty  of  murder  in  the  second  degree,  and  from  an  order 
denying  his  motion  for  a  new  trial.  A  number  of  errors  are  assigned. 
*     *     * 

After  alleging  the  infliction  of  certain  mortal  wounds,  the  informa- 
tion continues,  "of  which  said  mortal  wounds  the  said  Thomas  Crystal 
did  then  and  there  languish  and  languishing  did  live,  and  thereafter, 
on  the  21st  day  of  April,  A.  D.  1902,  at  the  county  of  Lewis  and 
Clarke,  in  the  state  of  Montana,  the  said  Thomas  Crystal  died."  An 
information  must  be  direct  and  certain  as  regards  the  party  charged, 
the  offense  charged,  and  the  particular  circumstances  of  the  oft'ense 
charged,  when  they  are  necessary  to  constitute  a  complete  offense. 
Pen.  Code,  §  1834.  It  is  not  permissible  to  convict  the  defendant  upon 
mere  inferences ;  he  must  be  directly,  plainly,  and  specifically  charged 
with  the  commission  of  a  certain  crime,  and  it  must  be  proved  sub- 
stantially as  alleged  in  order  to  convict  him. 

In  order  to  convict  an  accused  of  murder,  the  fact  of  the  killing  by 
him  as  alleged  must  be  proved  beyond  a  reasonable  doubt.  Pen.  Code, 
§  358.  The  fact  that  the  defendant  inflicted  upon  another  human  be- 
ing a  mortal  wound  deliberately,  premeditatedly,  with  malice  afore- 
thought, and  with  the  intent  to  kill  the  victim,  is  not  sufficient  to  sub- 
stantiate a  charge  of  murder.  The  victim  must  die  of  the  mortal 
wound,  and  within  a  year  and  a  day  after  the  stroke  is  received  or  the 
cause  of  death  administered.  Pen.  Code,  §  357.  If  the  victim  die  of 
the  mortal  wound,  but  after  a  year  and  a  day  have  elapsed  since  its 
infliction,  the  defendant  may  not  be  convicted  of  either  murder  or 
manslaughter.  NeitheiL_can  he  be  so  convicted  if,  while  the  victim  is 
1angnisf]in^  hecapbi^crf-the  TnortaT"  wound,  death  ensue  from  some 
cause  not  connected"  with  or  a  consequence  of  the  wound.  For  these 
reasons  the  information  should  directly  allege  that  death  resulted  from 
the  mortal  wounds  inflicted  by  the  defendant. 

This  view  being  so  clearly  correct  in  principle,  it  would  seem  that 
no  citation  of  authorities  is  necessary,  but  see  Clark  on  Ci-iminal  Pro- 
word  "feloniously"  Is  necessary,  as  is  the  word  "treasonably"  in  an  indictment 
for  treason.     See  2  Hawk.  P.  C.  c.  25,  §  55. 

In  some  crimes  the  use  of  certain  technical  words  sufficiently  charges  cer- 
tain elements  of  the  crime.  Thus,  the  word  "ravish"  sufficiently  charges 
force  and  violence,  and  lack  of  consent.  Harman  v.  Commonwealth,  12 
Serg.  &  R.  (Pa.)  G9  (1S24).  The  word  "adultery"  expresses  carnal  knowledge. 
Helfrich  v.  CommouAvealth,  33  Pa.  6S,  75  Am.  Dec.  579  (1859).  And  the  use  of 
the  word  "assault"  makes  it  unnecessary  to  state  the  acts  constituting  the 
assault  State  v.  Clayton,  100  Mo.  516,  13  S.  W.  819,  18  Am.  St  Rep.  565 
(1890). 

3  Part  of  this  case  is  omitted. 


so  THE    INDICTMENT  (Ch.  9 

cedure,  178 ;  People  v.  Lloyd,  9  Cal.  55 ;  Commonwealth  v.  Macloon, 
101  Mass.  1,  100  Am.  Dec.  89;  State  v.  Sundheimer,  93  Mo.  311,  6 
S.  W.  52 ;  Maxwell's  Criminal  Procedure,  180 ;  Bishop's  New  Crim- 
inal Procedure,  §§  527,  531,  532;  Wharton's  Criminal  Law  (10th  Ed.) 
§  536.  In  Lutz  V.  Commonwealth,  29  Pa.  441,  while  an  indictment 
containing  language  similar  to  the  one  at  bar  was  sustained,  the  court 
say:  "This  indictment  is  not  artistically  expressed.  Its  grammatical 
construction  is  open  to  criticism,  and  it  trenches  hard  on  those  rules 
of  certainty  which  obtain  in  criminal  pleading." 

The  Attorney  General  relies  on  the  concluding  clause  of  the  infor- 
mation as  supplying  the  defect,  because  it  alleges,  "and  so  the  said 
James  S.  Keerl  did  in  the  manner  and  form  aforesaid  willfully,  unlaw- 
fully, feloniously  and  of  his  deliberately  premeditated  malice  afore- 
thought kill  and  murder  the  said  Thomas  Crystal."  These  words  "are 
the  mere  conclusions  drawn  from  the  preceding  averments.  If  the 
averments  are  bad,  the  conclusion  will  not  aid  them;  if  they  are  good, 
and  sufficiently  describe  the  crime  as  the  law  requires,  *  *  *  the 
formal  concluding  words  are  immaterial."  Territory  v.  Young,  5 
Mont.  244,  5  Pac.  248 ;  State  v.  Northrup,  13  Mont.  522,  35  Pac.  228. 
We  cannot  give  our  approval  to  this  information. 

As  this  case  must  go  back  for  a  new  trial,  the  information  may  be 
amended  by  leave  of  the  court  to  conform  to  the  views  herein  ex- 
pressed.     ^      *     *  4 


STATE  V.  COXLEY. 

(Supreme  Judicial  Court  of  Maine,  1S54.     39  Me.  78.) 

At  the  March  term,  1854,  the  prisoners  were  tried  before  Shepley, 
C.  J.,  on  an  indictment  as  follows: 

"State  of  Maine. 

"Cumberland,  ss. — At  the  Supreme  Judicial  Court,  begun  and  holden 
at  Portland,  within  and  for  the  county  of  Cumberland,  on  the  first 
Tuesday  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  fifty-four, 

"The  jurors  for  said  state  upon  their  oaths  present  that  Martin 
Conley  and  John  Conley,  of  Portland,  in  the  county  of  Cumberland, 
laborers,  on  the  twelfth  day  of  February,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  fifty-four,  at  Portland  in  said  county  of 
Cumberland,  with  force  and  arms,  in  and  upon  one  Thomas  Guiner, 
feloniously,  willfully  and  of  their  malice  aforethought,  did  make  an 
assault,  and  that  they,  the  said  Martin  Conley  and  John,  Conley,  then 
and  there  with  certain  dangerous  weapons,  to  wit,  certain  wooden 
clubs,  of  the  length  of  four  feet  and  of  the  thickness  of  two  inches, 

•»  See,  also,  State  v.  McFadden.  48  Wash.  '^oO,  0?,  Pac.  414  (190.S).  Cf.  Lutz 
V.  Coiuiiiomvealtb,  29  Pa.  441  (1S57);   Shay  v.  People,  212  N.  Y.  317  (ISGO). 


Ch.  9)  THE    INDICTMENT  81 

which  they,  the  said  Martin  Conley  and  John  Conley,  then  and  there, 
in  both  of  their  hands  had  and  held,  the  said  Thomas  Guiner,  in  and 
upon  the  front  and  upper  part  of  the  head  of  him,  the  said  Thomas 
Guiner,  then  and  there  feloniously,  willfully  and  of  their  malice  afore- 
thought, did  strike  and  beat,  giving  unto  him,  the  said  Thomas  Guiner, 
then  and  there  with  the  said  dangerous  weapons,  to  wit,  wdth  the  said 
wooden  clubs,  of  the  length  of  four  feet  and  of  the  thickness  of  two 
inches,  two  mortal  wounds,  of  which  said  mortal  wounds  he,  the  said 
Thomas  Guiner,  on  the  twenty-first  day  of  February  now  last  past,  at 
Portland  aforesaid  in  the  county  aforesaid,  did  languish  and  die.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid  do  say,  that  the  said 
]\Iartin  Conley  and  John  Conley,  him,  the  said  Thomas  Guiner,  in 
manner  and  form  aforesaid,  feloniously,  willfully  and  of  their  malice 
aforethought,  did  kill  and  murder,  against  the  peace  of  said  state, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided."    *     ♦     * 

Tenney,  J.5  *  *  *  The  fifth  cause  for  the  arrest  of  judgment 
is  that  the  indictment  contains  no  allegation  of  the  length,  breadth  or 
depth  of  the  wounds  alleged  to  have  been  caused  by  the  striking  of 
the  prisoners.  When  death  is  occasioned  by  a  wound,  it  should  be 
stated  to  have  been  mortal.  It  must  appear  from  the  indictment  that 
the  wound  given  was  sufficient  to  cause  the  death ;  and  for  this  rea- 
son, unless  it  otherwise  appear,  that  the  length  and  depth  must  be 
shown ;  but  it  is  not  necessary  to  state  the  length,  depth  or  breadth  of 
the  wound,  if  it  appear  that  it  contributed  to  the  party's  death.  Rex  v. 
Mosley,  1  Ry.  &  Moody,  C.  C.  97.  In  the  case  referred  to,  there  were 
several  wounds,  and  it  was  held  by  Abbott,  C.  J.,  Best,  C.  J.,  Alex- 
ander, C.  B.,  Graham,  B.,  Bayley,  J.,  Park,  J.,  Burrow,  J.,  Garrow, 
B.,  Hullock,  B.,  and  Gasalee,  J.,  to  be  unnecessary  to  describe  the 
length,  breadth  or  depth  of  the  wounds.  Holroyd,  J.,  and  Littledale, 
J.,  were  of  a  contrary  opinion.     *     *     * 

Another  ground  for  the  arrest  of  the  judgment  is  that  it  is  not  al- 
leged in  the  indictment  that  the  wounds  described  therein,  or  either 
of  them,  were  given,  caused  or  produced  by  the  striking  alleged,  the 
necessary  averment  "by  the  stroke  or  strokes  aforesaid"  being  omitted. 
It  is  averred  in  the  indictment  that  the  prisoners  then  and  there  v/ith 
the  dangerous  weapons,  etc.,  which  they  then  and  there  in  both  their 
hands,  had  and  held,  the  said  Thomas  Guiner,  in  and  upon  the  front 
and  upper  part  of  the  head,  etc.,  did  strike  and  beat,  giving  unto  him, 
etc.,  then  and  there  with  said  dangerous  weapons,  etc.,  two  mortal 
wounds,-  of  which  said  mortal  wounds,  the  said  Thomas  Guiner,  on 
the  21st  day  of  February  aforesaid,  did  languish  and  die.  It  is  not 
easy  to  perceive  in  what  respect  the  allegation  fails  to  be  sufficient. 
It  is  full,  that  the  prisoners  struck  and  beat  the  deceased,  giving  unto 
him  two  mortal  wounds  with  the  dangerous  weapons,  before  described, 
which  they  in  both  their  hands  had  and  held,  of  which  said  mortal 

6  Part  ot  this  case  is  omitted. 
Mik.Ce.Pe. (Abridged  Ed.) — 6 


;^2  THE    INDICTMENT  (Ch.  9 

wounds  the  deceased  died.  It  necessarily  follows,  from  the  facts  al- 
leged in  language  sufficiently  accurate  and  technical,  that  the  strokes 
inflicted  by  the  prisoners  caused  mortal  wounds,  which  produced  the 
death  charged  in  the  indictment. 

The  eighth  objection  to  the  indictment  is  that  it  does  not  contain 
the  allegation  that  the  deceased,  of  the  said  mortal  wounds,  on  and 
from  the  said  twelfth  day  of  February,  etc.,  until  the  twenty-first  of 
the  same  February,  did  suffer  and  languish,  and  languishing  did  live. 
The  prisoner's  counsel,  in  support  of  this  objection,  refer  to  certain 
precedents  of  forms  of  indictment,  without  any  other  authority  that 
this  allegation  is  essential.  It  is  held,  however,  that  the  time  both  of 
the  stroke  and  death  should  be  stated  on  the  record,  the  former  be- 
cause the  escheat  and  forfeiture  of  lands  relate  to  it,  the  latter  in  or- 
der that  it  may  appear  that  the  death  took  place  within  a  year  and  a  ' 
day  after  the  mortal  injury  was  received.  1  Chitty's  Cr.  Law,  222; 
3  ibid.  736.  It  being  alleged  in  the  indictment  now  under  considera- 
tion that  the  deceased  did  languish  and  die  on  the  twenty-first  day  of 
February,  in  the  year  of  our  Lord  185-i,  of  the  mortal  wounds  inflicted 
on  the  12th  day  of  the  same  month,  in  full,  precise,  and  technical  lan- 
guage, the  reason  of  the  principle  is  satisfied.  And  no  rule  of  law 
which  can  be  found  being  violated,  the  indictment  is  regarded  sufficient 
in  this  respect.     *     *     * 

Exceptions  and  motion  overruled.® 

6  "An  indictment  of  murder  or  manslaughter  hath  these  certainties  and  req- 
uisites to  be  added  to  it  more  than  other  indictments,  for  it  must  not  be  only 
felonice,  and  ascertain  the  time  of  the  act  done,  but  must  also: 

"(1)  Declare  how,  and  with  what  it  was  done,  namely,  cum  quodam  gladio, 

etc. 

"Yet  If  the  party  were  killed  with  another  weapon,  it  maintains  the  in- 
dictment; but  if  it  were  with  another  kind  of  death,  as  poisoning,  or  strang- 
ling, it  doth  not  maintain  the  indictment  upon  evidence.  2  Co.  Inst.  319;  Co. 
P.  C.  p.  48.  ,  .    ,     .       . 

"So  if  A.  be  indicted  for  poisoning  of  B.  it  must  allege  the  kmd  of  poison, 
but  if  he  poisoned  B.  with  another  kind  of  poisoning,  yet  it  maintains  the  in- 
dictment, for  the  kind  of  death  is  the  same. 

"(2)  lie  must  shew  in  what  hand  he  held  his  sword. 

"If  an  indictment  runs  thus,  that  cum  quodam  gladio,  quem  in  dextra  f^ua 
tenuit,  percussit,  without  saying  in  dextra  nianu.  for  this  cause  an  indict- 
ment was  quashed.     P.  44  Eliz.  B.  R.,  Cuppledike's  Case,  3  Coke,  5b.         \ 

"(3)  Regularly  it  ought  to  set  down  the  price  of  the  sword  or  other  weapon, 
or  else  say  nullius  valoris,  for  the  weapon  is  a  deodand  forlcMted  to  the  kuig, 
and  the  township  shall  be  charged  for  the  value  if  delivered  to  them. 

"But  this  seems  not  to  be  essential  to  the  indictment. 

"(4)  It  ought  to  show  in  what  part  of  the  body  he  was  wounded,  and  there- 
fore if  it  be  super  brachium,  or  manum,  or  latus.  without  saying  whether 
right  or  left,  it  is  not  good.     Long's  Case,  5  Coke,  121b.  ^         ^ 

"So  if  it  be  in  sinistro  bracio,  where  it  should  be  brachio,  it  Is  not  good, 
because  insensible.     T.  31  Eliz.  B.  R.,  Webster's  Case.  ,       ,    , 

"So  if  the  wound  be  laid  circiter  pectus,  it  is  not  good.  T.  29  Eliz.,  Clenches 
Rep.  10.  Super  partes  posteriores  corporis  not  good.  H.  23  Car.  I,  B.  R., 
Savage's  Case,  Style,  76.  ,     .     . 

"But  super  fariera,  or  caput,  or  super  dextram  partem  corporis,  or  in  insima 
parte  ventris  are  certain  enough.     Ivong's  Case,  5  Coke.  121b. 

"('j)  Regularly  the  leuizth  and  depth  of  the  wound  Is  to  be  shewed,  but  this 
is  not  necessary  in  all  cases,  as,  namely,  where  a  limb  is  cut  off.     Ilaydou's 


Ch.  9)  THE    INDICTMENT  83 

PEARCE  V.  STATE. 
(Supreme  Court  of  Tennessee,  1853.    1  Sneed,  G3,  GO  Am.  Dec.  135.) 

ToTTEN,  J.,  delivered  the  opinion  of  the  court.'' 

James  Pearce  was  convicted  in  the  circuit  court  of  Rhea  on  a  pre- 
sentment for  illegal  voting.  He  moved  for  a  new  trial,  and  in  arrest, 
and,  the  motions  being  severally  overruled,  he  appealed  in  error  to 
this  court.     *     *     * 

The  presentment  avers,  in  substance,  that  in  the  election  for  Presi- 
dent and  Vice  President  of  the  United  States,  in  1848,  the  defendant 
unlawfully  and  knowingly  voted  in  the  county  of  Rhea;  he,  the  de- 
fendant, "not  being  a  qualified  voter  in  and  for  said  county  of  Rhea." 

The  act  of  1844  (chapter  31,  §  1)  provides  that  if  a  person  vote  at 
any  election  held  under  the  Constitution  and  laws  of  this  state,  "such 
person  not  being  at  the  time  a  qualified  voter  of  the  county  in  which 
he  so  votes,  he  shall  be  adjudged  guilty  of  a  misdemeanor." 

We  think  the  presentment  bad.  The  nature  and  cause  of  the  accu- 
sation are  not  well  stated.  Const,  art.  1,  §  9.  The  presentment  is  in 
the  words  of  the  statute ;  and  the  words  are,  "a  qualified  voter." ^  That 
is  not  a  fact,  but  a  legal  result ;  and  for  the  facts  which  constitute  a 
qualified  voter  we  are  to  refer  to  the  Constitution  and  laws,  from 
which  it  will  be  seen  that  there  are  several  grounds  of  disqualification : 
(1)  If  he  be  not  a  free  white  man,  twenty-one  years  of  age.  (2)  If 
he  be  not  a  citizen.  (3)  If  he  has  not  resided  in  the  county  six  months 
as  a  citizen  thereof. 

Now,  for  which  of  these  causes  was  the  defendant  disqualified?  The 
presentment  does  not  inform  him,  and  the  cause  can  only  appear  in 
the  proof,  when  he  may  be  taken  by  surprise,  and  be  wholly  unpre- 
pared to  make  his  defense,  however  just  and  vaHd  it  may  be. 

The  rule  is  that  "the  indictment  must  charge  the  crime  with  cer- 

Case,  4  Coke,  42a.  So  It  may  be  also  a  dry  blow,  and  plaga  Is  applicable  to 
a  bruise  or  a  wound. 

"But  though  the  manner  and  place  of  the  hurt  and  its  nature  be  requisite, 
as  to  the  formality  of  the  indictment,  and  it  is  fit  to  be  done,  as  near  the  truth 
as  may  be,  yet  if  upon  evidence  it  appear  to  be  another  kind  of  wound  in 
another  place,. if  the  party  died  of  it,  it  is  sufficient  to  maintain  the  indict- 
ment. 

"(6)- It  is  usual  to  allege  the  party  stricken  to  have  been  in  pace  Dei  et 
domini  regis,  but  not  necessary  to  be  inserted.     Haydon's  Case,  4  Coke,  41b." 

2  Hale.  P.  C.  185,  186. 

Statutes  have  been  very  generally  adopted  making  it  unnecessary  to  set 
forth  the  means  employed  in  causing  the  death.  See  Catchcart  v.  Common- 
wealth, 37  Pa.  108  (18G0). 

"The  fourth  exception  was  because  the  depth  and  breadth  of  the  wound 
was  not  shown,  as  is  always  usual  in  indictments,  so  that  it  may  appear  to 
the  court  that  the  wound  was  mortal.  But  it  was  answered  and  resolved  by 
the  court  that  it  could  not  be  in  this  case,  because  all  the  pan  of  the  knee 
was  entirely  cut  off ;  as  if  an  arm  or  leg  is  cut  off.  or  if  a  man  is  beheaded, 
the  depth  or  breadth  of  the  wound  shall  not  be  shown."  Haydon's  Case,  4 
Coke,  41  (1585). 

7  Part  of  this  case  is  omitted. 


84  THE    INDICTMENT  (Ch.  9 

tainty  and  precision,  and  must  contain  a  complete  description  of  such 
facts  and  circumstances  as  will  constitute  the  crime.  A  statement  of 
a  legal  result  is  bad."  1  Chit.  Cr.  L.  228.  A  conclusion  of  law  need 
not  be  stated.  It  is  the  facts  upon  which  it  is  founded  that  are  neces- 
sary and  material.    1  Chit.  Cr.  L-  231. 

We  may  further  observe  that  where  the  act  is  not,  in  itself,  neces- 
sarily unlawful,  but  becomes  so  by  other  facts  connected  with  it,  the 
facts  in  which  the  illegality  consists  must  be  set  forth  and  averred. 
1  Chit.  Cr.  L.  229. 

Now,  the  act  of  voting  is  not  necessarily  illegal,  but  may  become  so 
for  some  of  the  causes  before  stated;  and,  in  order  that  the  charge 
may  be  perfect,  such  cause  must  be  set  forth  and  averred  in  the  indict- 
ment or  presentment.  Xh^  gr'^^md  ^^  Hl•gq^gtlification  not  ^61"^^'^^""^^ 
in  the,££esfi»fe-«as%-tl*e-j«dgi«eiit  AvilV  be,.xeversed,  aiidthembtion  In 
arrest  sustained.      -  ^  >-~-^.-»~. 

Judgiuciit  reversed. 


STATE  V.  HADDONFIELD  &  C.  TURNPIKE  CO. 
(Supreme  Court  of  New  Jersey,  1900.    65  N.  J.  Law,  97,  46  Atl.  700.) 

Case  certified  from  court  of  oyer  and  terminer,  Camden  county. 

The  Haddonfield  &  Camden  Turnpike  Company  was  indicted  for 
neglecting  to  keep  its  road  in  repair,  and  demurred  to  the  indictment. 
Case  certified,  and  court  advised  that  defendant  was  entitled  to  judg- 
ment on  its  demurrer. 

Gum  MERE,  J.  The  defendant  is  indicted  for  neglecting  to  keep  its 
turnpike  road  in  repair.  The  ground  of  demurrer  is  that  the  indict- 
ment fails  to  show  how  the  defendant's  obligation  to  keep  its  road  in 
repair  arises. 

The  pleading  demurred  to,  after  alleging  that  the  defendant  is  in 
possession  of  the  turnpike,  and  that  the  same  is  out  of  repair,  charges 
that  the  defendant  is  "by  law  holden  and  bound  the  said  turnpike  road 
to  repair  and  amend,"  etc.  The  rule  with  relation  to  the  necessity  of 
setting  forth  in  an  indictment  how  the  duty  arose  for  the  negicct  to 
perform  which  the  defendant  is  presented  is  thus  stated  in  State  v. 
Hageman,  13  N.  J.  Law,  314:  "Where  an  offense  consists  in  an  omis- 
sion to  do  some  act,  the  indictment  must  show  how  the  defendant's 
obligation  to  perform  that  act  arises,  unless  it  is  a  duty  connected  by 
law  to  the  office  which  the  defendant  sustains."  To  the  same  effect  is 
State  V.  President,  etc.  of  New  Jersey  Turnpike  Co.,  IG  N.  J.  Law, 
222. 

It  is  contended  on  behalf  of  the  state  that  the  legal  duty  of  the  de- 
fendant to  repair  and  amend  its  turnpike  is  created  by  its  charter,  and 
that,  as  the  charter  is  a  law  of  the  state,  the  allegation  of  the  indict- 
ment is  sufficient,  the  case  being  within  the  exception  mentioned  in 
State  V.  Hageman.    This  contention  would  be  sound  if  the  charter  of 


Ch.  9)  THE    INDICTMENT  85 

the  company  was  a  public  act,  provided  it  casts  upon  the  company  the 
duty  of  repair.  But  the  charter  is  a  private  act,  and  we  cannot  take 
judicial  notice  of  its  contents.  1  Chit.  PI.  216.  The  indictment  should 
have  set  out  the  charter  provision,  from  which  the  duty  of  the  defend- 
ant to  repair  and  amend  its  road  is  claimed  to  arise,  and  is  fatally  de- 
fective in  not  doing  so. 

The  Camden  oyer  and  terminer  is  advised  that  the  defendant  is  en- 
titled to  judgment  on  its  demurrer. 


HARMAN  V.  JACOB. 

(Upper  Bench,   1651.     Style,  256.) 

In  an  arrest  of  judgment  upon  a  verdict  given  against  an  alien  in  an 
indictment  upon  the  statute  of  22  H.  VIII,  c.  13,  for  using  a  trade, 
exception  was  first  taken.  *  *  *  2dly.  The  indictment  doth  not 
say  that  he  is  alienatus  extra  Angliam.  And  this  was  held  a  good  ex- 
ception.^ , 

COMMOmVEALTH  v.  HERSEY. 

(Supreme  Judicial  Court  of  Massachusetts,  1S61.     2  Allen,  173.) 

Indictment  for  murder. 

BiGELOW,  C.  J.*  The  motion  in  arrest  of  judgment  in  the  present 
case  is  fourided  on  the  omission  to  aver  that  the  defendant,  in  adminis- 
tering poison  to  the  deceased,  did  it  with  an  intent  to  kill  and  murder. 
4^     ^     ^ 

There  can  be  no  doubt  that,  in  every  case,  to  render  a  party  respon- 
sible for  a  felony,  a  vicious  will  or  wicked  intent  must  concur  with  a 
wrongful  act.  But  it  does  not  follow  that,  because  a  man  cannot  com- 
mit a  felony  unless  he  has  an  evil  or  malicious  mind  or  will,  it  is  neces- 
sary to  aver  the  guilty  intent  as  a  substantive  part  of  the  crime  in  giv- 
ing a  technical  description  of  it  in  the  indictment.  On  the  contrary, 
as  the  law  presumes  that  every  man  intends  the  natural  and  necessar) 
consequences  of  his  acts,  it  is  sufficient  to  aver^in  apt  and  technical 
words  that  a  defendant  committed  a  criminal  act,  without  alleging  the 
specific  intent  with  which  it  was  done.  In  such  case,  the  act  neces- 
sarily includes  the  intent.  Thus,  in  charging  the  crime  of  burglary, 
it  is  not  necessary  to  aver  that  the  breaking  and  entering  a  house  was 
done  with  an  intent  to  steal.  It  is  sufficient  to  charge  the  breaking 
and  entering  and  an  actual  theft  by  the  defendant.  The  reason  is  that 
the  fact  of  stealing  is  the  strongest  possible  evidence  of  the  intent,  and 
the  allegation  of  the  theft  is  equivalent  to  an  averment  of  that  intent. 
Commonwealth  v.  Hope,  22  Pick.  1,  5 ;  2  East,  P.  C.  c.  15,  §  24. 

8  Part  of  this  case  is  omitted. 
»  Part  of  this  case  is  omitted. 


S6 


THE    INDICTMENT  (Ch.  9 


So  in  an  indictment  for  murder  by  blows  or  stabs  with  a  deadly 
weapon,  it  is  never  necessary  to  allege  that  they  were  inflicted  with 
an  intent  to  kill  or  murder.  The  law  infers  the  intent  from  proof  that 
the  acts  were  committed,  and  that  death  ensued.  The  averment,  there- 
fore, of  the  criminal  act  comprehends  the  evil  or  wicked  intention  with 
which  it  was  committed.  The  true  distinction  seems  to  be  this :  When 
by  the  common  law  or  by  the  provision  of  a  statute  a  particular  inten- 
tion is  essential  to  an  offense,  or  a  criminal  act  is  attempted  but  not 
accomplished,  and  the  evil  intent  only  can  be  punished,  it  is  necessary 
to  allege  the  intent  with  distinctness  and  precision,  and  to  support  the 
allegation  by  proof.  On  the  other  hand,  if  the  offense  does  not  rest 
merely  in  tendency,  or  in  an  attempt  to  do  a  certain  act  with  a  wicked 
purpose,  but  consists  in  doing  an  unlawful  or  criminal  act,  the  evil  in- 
tention will  be  presumed  and  need  not  be  alleged,  or,  if  alleged,  it  is 
a  mere  formal  averment,  which  need  not  be  proved.  In  such  case, 
the  intent  is  nothing  more  than  the  result  which  the  law  draws  from 
the  act,  and  requires  no  proof  beyond  that  which  the  act  itself  sup- 
plies. 1  Stark.  Crim.  PI.  165;  1  Chit.  Crim.  Law,  233;  King  v. 
Philipps,  6  East,  474;  1  Hale,  P.  C.  455;  Commonwealth  v.  Merrill, 
14  Gray,  415,  77  Am.  Dec.  336. 

To  illustrate  the  application  of  the  rule,  take  the  case  of  an  indict- 
ment for  an  assault  with  an  intent  to  commit  a  rape.  The  act  not  be- 
ing consummated,  the  gist  of  the  offense  consists  in  the  intent  with 
which  the  assault  was  committed.  It  must  therefore  be  distinctly  al- 
leged and  proved.  But  in  an  indictment  for  the  crime  of  rape  no  such 
averment  is  necessary.  It  is  sufficient  to  allege  the  assault,  and  that 
the  defendant  had  carnal  knowledge  of  a  woman  by  force  and  against 
her  will.  The  averment  of  the  act  includes  the  intent,  and  proof  of 
the  commission  of  the  offense  draws  with  it  the  necessary  inference  of 
the  criminal  intent.  The  same  is  true  of  indictments  for  assault  with 
intent  to  kill,  and  murder.  In  the  former,  the  intent  must  be  alleged 
and  proved.  In  the  latter,  it  is  only  necessary  to  allege  and  prove  the 
act. 

The  application  of  this  principle  to  the  case  at  bar  is  deci^ive  of  the 
question  raised  by  the  present  motion.  There  is  nothing  in  the  nature 
of  the  crime  of  murder  by  poison  to  distinguish  it  from  homicide  by 
other  unlawful  means  or  instruments,  so  as  to  render  it  necessary  that 
it  should  be  set  out  with  fuller  averments  concerning  the  intention 
with  which  the  criminal  act  was  committed.  If  a  person  administers 
to  another  that  which  he  knows  to  be  a  deadly  poison,  and  death  en- 
sues therefrom,  the  averment  of  these  facts  in  technical  form  neces- 
sarily involves  and  includes  the  intent  to  take  life.  It  is  the  natural 
and  necessary  consequence  of  the  act  done,  from  which  the  law  infers 
that  the  party  knew  and  contemplated  the  result  which  followed,  and 
that  it  was  committed  with  the  guilty  intention  to  take  life. 

It  was  urged  by  the  counsel  for  the  prisoner,  as  an  argument  in 
support  of  the  insufficiency  of  the  indictment,  that  every  fact  stated  ii. 
the  indictment  might  have  been  done  by  the  defendant,  and  yet  he 


Ch.  9)  THE    INDICTMENT  87 

might  have  committed  no  offense;  tliat  is,  that  a  person  mic;"ht  admin- 
ister to  another  that  which  he  knew  to  be  a  deadly  poison,  from  which 
death  ensued,  innocently  and  without  any  intent  to  do  bodily  harm. 
In  a  certain  sense  this  is  true.  A  physician,  for  example,  might  in  the 
exercise  of  due  care  and  skill  give  to  his  patient  a  medicine  of  a  poison- 
ous nature,  in  the  honest  belief  that  it  would  cure  or  mitigate  disease, 
but  which  from  unforeseen  and  unexpected  causes  actually  causes 
death.  And  the  same  is  true  of  many  other  cases  of  homicide  produced 
by  other  means  than  poison.  Take  the  case  of  a  murder  alleged  to  have 
been  committed  by  stabs  or  cuts  with  a  knife.  Such  wounds  may  be 
inflicted  innocently  and  for  a  lawful  purpose.  A  surgeon  in  perform- 
ing a  delicate  and  difficult  operation,  by  a  slight  deflection  of  the  knife, 
which  the  most  cautious  skill  could  not  prevent,  might  inflict  a  wound 
which  destroys  life.  But  it  has  never  been  deemed  necessary,  because 
certain  acts  which  cause  death  may  be  done  without  any  wicked  or 
criminal  intent,  to  aver  in  indictments  for  homicide  that  the  person 
charged  acted  with  an  intent  to  take  life.  The  corrupt  and  wicked  pur- 
pose with  which  a  homicidal  act  is  done  is  sufficiently  expressed  by  the 
averment  that  it  was  committed  willfully  and  with  malice  afore- 
thought ;  and  this  allegation  may  be  always  disproved  by  showing  that 
the  act  happened  per  infortuniam,  or  was  otherwise  excusable  or  justi- 
fiable. 

Motion  in  arrest  of  judgment  overruled. 


REX  V.  TRIGG. 

(Court  of  King's  Bench.     Style,  124.) 

The  court  was  moved  to  quash  a  presentment  against  Trigg  for  not 
going  before  a  justice  of  peace  to  take  the  oath  of  an  headbrow  to 
which  office  he  was  chosen  at  a  Icet.  The  exceptions  taken  against  it 
were,  1.  That  it  doth  not  appear  that  any  notice  was  given  to  him  to 
go  before  the  justice.  2dly,  it  appears  not  that  the  justice  had  author- 
ity to  administer  the  oath.  For  the  first  exception  the  presentment 
was  quashed.^" 


STATE  v.  HODGES. 

(Court  of  Appeals  of  Maryland,  ISSO.     55  Md.  127.) 

Robinson,  J.,  delivered  the  opinion  of  the  court. ^^ 
The  defendant  in  error  was   indicted   for  receiving  stolen   goods, 
knowinij  them  to  be  stolen.    A  demurrer  was  filed  to  the  indictment, 
and  the  court  below  sustained  the  denmrrer  and  quashed  the  indict- 
ment.    *     ♦     ♦ 

'oArrord:    State  v.  Lc-may,  13  ArU,  405  (1853);    State  v.  Munch,  22  Minn. 
67  (1875). 

11  Part  of  this  case  is  omitted. 


88  THE    INDICTMENT  (Ch.  9 

The  offense  in  this  state  has  ahvays  been  considered  as  a  misde- 
meanor. Kearney's  Case,  46  Md.  422.  It  was  not  necessary  therefore 
to  allege  in  the  indictment  that  the  property  in  question  was  feloni- 
ously received  by  the  defendant  in  error.     ♦     *     * 

Where  the  offense  charged  is  an  offense  at  common  law,  and  is  it- 
self manifestly  illegal,  the  averment  that  it  was  done  unlawfully  may 
not  be  necessary.  1  Chitty,  Crim.  Law,  160;  2  Hawk,  book  2,  §  25. 
But  the  mere  receipt  of  stolen  goods,  knowing  them  to  be  stolen,  was 
not  per  se  an  offense  at  common  law,  because  the  owner  may  law- 
fully receive  back  his  own  goods,  knowing  them  to  be  stolen,  provided 
there  be  no  agreement  to  favor  the  thief;  or  one  may  lawfully  receive 
stolen  property  for  the  purpose  of  keeping  the  goods  for  the  owner.  2 
East's  Crown  Law,  ch.  25,  §  141 ;  1  Hale,  650.  And  accordingly  we 
find  in  Chitty,  Archbold,  and  in  fact  in  all  the  books  of  forms,  the 
averment  that  the  goods  were  unlawfully  received.     *     *     " 

If  it  be  an  offense  created  by  statute,  it  is  only  necessary  to  describe 
it  in  the  language  of  the  statute.  In  this  state,  the  Code  merely  pre- 
scribes the  punishment  for  receiving  stolen  goods,  and  does  not  in  any 
manner  change  the  nature  or  character  of  the  offense  itself.  It  is  nec- 
essary, therefore,  to  set  out  in  the  indictment  all  the  circumstances 
necessary  to  constitute  the  offense  at  common  law,  and  inasmuch  as 
it  was  necessary  at  common  law,  to  constitute  the  offense,  that  the 
party  charged  should  receive  the  property  unlawfully,  we  are  of  opin- 
ion that  it  must  be  so  averred  in  the  indictment.  The  indictment  in 
this  case  does  not  allege  that  the  goods  were  unlawfully  received  by 
the  traverser,  and  the  judgment  must  therefore  be  affirmed. ^^ 

12  If  malice  be  a  necessary  ingredient  of  the  offense,  malice  must  be  alleged. 
Sarali  v.  State.  28  Miss.  267.  Gl  Am.  Dec.  544  (1854). 

So,  when  knowledge  of  certain  facts  is  essential  to  the  offense,  the  indict- 
ment must  aver  such  knowledge.  People  v.  Behee,  90  Mich.  350,  51  N.  W.  515 
(1892). 

"In  the  case  of  Wong  v.  Astoria.  13  Or.  538,  11  Pac.  295,  it  was  hold  that  to 
allege  that  an  act  was  done  'willfully  and  unlawfully'  was  equivalent  to  alleg- 
ing that  it  was  done  'knowingly.'  In  the  case  of  Weinzorpflin  v.  State.  7 
Blackf.  (Ind.)  ISG,  195,  it  is  said  among  other  things,  as  follows:  '  "Feloniously" 
is  substituted  for  it  [the  word  "unlawfully"]  in  this  indictment,  and  is  not 
tantamount  to  it,  but  is  a  word  of  far  more  extensive  criminal  meaning.  The 
act  complained  of  could  not  have  been  done  feloniously,  and  not  unlawfully 
done.'  In  the  case  of  Carder  v.  State. -17  Ind.  307,  it  is  said  'that  the  word 
"feloniously,"  in  the  connection  In  which  it  was  used  in  the  indictment,  was 
Identical  in  its  import  with  the  word  "purposely."  '  In  the  case  of  Com- 
monwealth V.  Adams,  127  Mass.  15,  17,  it  is  said:  'But  the  allegation  that  the 
defendant  maliciously  and  feloniously  incited  and  procured  principal  to  com- 
mit the  felony  ex  at.  tei'mini  imports  that  she  acted  with  an  unlawful  intent.' 
In  the  case  of  Allen  v.  Inhabitants,  3  Wils.  318,  it  is  said  as  follows:  'Here 
he  (tbe  prosecutor)  has  alleged  in  his  declaration  *  *  ♦  that  the  same 
was  committed  and  done  feloniously ;  and  that  act,  which  was  committed 
feloniously,  was  certainly  done  willfully,  unlawfully,  and  maliciously,  for 
doing  an  act  feloniously  is  doing  it  malo  animo,  viz.,  with  malice.'  "  Valentine, 
J.,  in  State  v.  Bush,  47  Kan.  201.  27  Pac.  8.34.  13  L.  R.  A.  G07  (1891). 

In  Kitcliinman's  Case,  Style,  ."74  (1G53).  lioll,  C.  .1.,  said:  "It  is  said  to  be 
preferred  malitiose  and  it  cannot  be  malitiose  except  it  be  also  falsely." 


Ch.  9)  THE    INDICTMENT  89 

STATE  V.  DORAN. 

(Supreme  Judicial  Court  of  Maine.  1904.    99  Me.  329,  59  Atl.  440,  105  Am.  St. 

Rep.  278.) 

Whitehouse,  J.^'  It  is  alleged  in  the  indictment  that  the  defend- 
ant, "with  force  and  arms,  the  car  numbered  18,656  of  the  Boston  & 
Maine  Railroad  *  *  *  feloniously,  willfully,  and  maliciously  did 
attempt  to  break  and  enter  for  the  purpose  of  committing  a  felony." 
The  jury  returned  a  verdict  of  guilty,  and  the  defendant  moved  in 
arrest  of  judgment;  among  other  reasons,  "because  no  specific  offense 
against  the  laws  of  this  state  is  alleged  against  the  said  Doran  in  said 
indictment,  and  that  no  judgment  could  be  rendered  upon  the  verdict 
in  said  court."  The  motion  was  overruled  by  the  presiding  judge,  and 
the  case  comes  to  this  court  on  exceptions  to  this  ruling.     *     *     * 

Where  the  offense  is  created  by  statute,  and  the  facts  constituting  it 
are  fullv  set  out,  it  is  undoubtedly  sufficient  to  charge  the  offense  in 
the  language  of  the  statute  without  further  description.  1  Bish.  Cr. 
Proc.  §  611.  But  "in  all  criminal  prosecutions  the  accused  shall  have 
a  right  *  *  *  to  demand  the  nature  and  cause  of  the  accusation." 
Const.  Me.  art.  1,  §  6.  He  has  a  right  to  insist  that  the  facts  alleged 
to  constitute  a  crime  shall  be  stated  in  the  indictment  against  him  with 
that  reasonable  degree  of  fullness,  certainty,  and  precision  requisite 
to  enable  him  to  meet  the  exact  charge  against  him,  and  to  plead 
any  judgment  which  may  be  rendered  upon  it  in  bar  of  a  subsequent 
prosecution  for  the  same  oft^ense. 

Hence,  if  a  statute  creating  an  offense  fails  to  set  out  the  facts  con- 
stituting it  sufficiently  to  apprise  the  accused  of  the  precise  nature  of 
the  charge  against  him,  a  more  particular  statement  of  the  facts  will 
be  required  in  the  indictment.  "And  where  "a  more  generic  term  is 
used,  or  where  the  words  of  the  statute  by  their  generality  may  em- 
brace cases  which  fall  within  the  terms  but  not  within  the  spirit  or 
meaning  thereof,  the  specific  facts  must  be  alleged  to  bring  the  de- 
fendant precisely  within  the  inhibition  of  the  law."  Enc.  of  PI.  and 
Prac.  vol.  10,  p.  487;  Wharton's  Cr.  PI.  and  Prac.  §  220.  Indeed,  it 
is  an  elementary  rule  of  criminal  pleading  that  every  fact  or  circum- 
stance which  is  a  necessary  ingredient  in  a  prima  facie  case  of  guih 
musi  be  set  out  in  the  indictment. 

With  respect  to  indictments  for  attempts  to  commit  offenses  ^Ir 
Bishop  says :  "An  attempt  is  an  intent  to  do  a  particular  criminal  thinj 
with  an  act  towards  it  falling  short  of  the  thing  intended  [1  Bish.  Cr. 
Law,  §  728],  and  on  principle  we  see  that  we  must  set  out  the  act 
which  was  committed  and  the  specific  intent  which  accompanied  it." 
Bish.  on  Stat.  Cr.  §  394;  2  Crim,  Proc  §§  1,  92;  Directions  and 
Forms,  §  100.     *     *     * 

13  Part  of  this  case  is  omitted. 


90  THE    INDICTMENT  (Ch.  9 

Again,  as  already  noted,  the  indictment  fails  to  specify  the  particu- 
lar felony  which  it  is  alleged  the  defendant  intended  to  commit.  This 
is  another  fatal  defect.  The  word  "felony"  is  not  the  name  of  any 
distinctive  offense.  It  is  a  generic  term,  employed  to  distinguish  cer- 
tain high  crimes,  as  murder,  robbery,  rape,  arson,  and  larceny,  from 
other  minor  ones,  known  as  "misdemeanors."  The  averment  that  the 
defendant  broke  and  entered  the  car  for  the  purpose  of  committing  a 
felony  wholly  failed  to  apprise  him  of  the  specific  offense  which  it  is 
claimed  he  intended  to  commit.  Whether  it  would  be  contended  by 
the  state  that  he  intended  to  commit  murder,  or  robbery,  or  rape,  or 
larceny,  he  is  not  informed.  Upon  the  trial  of  such  an  indictment 
he  was  liable  to  be  oppressed  by  the  introduction  of  evidence  which  he 
could  not  anticipate  or  be  prepared  to  meet.    *    *    *. 

Motion  sustained.    Judgment  arrested.^* 


II.  Averment  of  Time  and  Place  of  the  OfeensB 

ANONYMOUS. 
(Court  of  King's  Bench,  14S6.  Year  Book  2  Hen.  VII,  10.  pi.  6.) 
In  the  King's  Bench  upon  an  indictment  taken  in  the  sheriff's  tourn 
it  was  found  that  one  J.  with  force  and  arms  on  the  first  day  of  May 
at  H.  and  the  fourth  day  of  May  at  C.  in  D.  made  an  assault,  beat,  and 
grievously  maltreated,  and  one  horse  of  the  value  of,  etc.  then  and 
there  being,  feloniously  stole,  took  and  carried  away,  and  because  there 
were  in  the  commencement  two  several  days  and  places,  and  in  the 
conclusion  it  was  then  and  there  one  horse,  etc.  and  there  cannot  be 
H  felony  laid  in  two  places  at  two  times,  without  special  matter.  (For 
a  felony  cannot  be  done  except  at  one  time  and  in  one  place,  and  it 
is  uncertain,  in  which  of  the  said  places,  or  on  which  of  the  said  days 
it  is  intended,  and  so  it  is  uncertain.)  And  because  of  this,  as  to  the 
felony  let  him  go  quit. 

ANONYMOUS. 

(Upper  Bench,  1055.     Style,  44S.) 

The  court  was  moved  to  quash  an  indictment  grounded  upon  the 
statute  of  5  Eliz.  preferred  against  one  for  using  the  trade  of  a  draper, 
not  having  served  as  an  apprentice  in  that  trade,  according  to  the  stat- 
ute, upon  these  two  exceptions:  1.  It  is  said  he  used  the  trade  in  the 
year  1G53,  and  doth  not  say  the  year  of  our  Lord.  2dly.  It  is  not 
mid  that  the  jury  was  returned,  nor  whence  they  were,  and  both  ex- 
veptions  were  held  good  by  Role,  Chief  Justice,  and  the  indictment 
was  thereupon  quashed. 

1*  Accord;   Sarah  v.  State,  28  Miss.  267,  61  Am.  Dec.  544  (1854). 


Ch.  9)  THE    INDICTMENT  91 

REX  V.  MASON. 

(Court  of  King's  Bench,  ICSO.     2  Sbow.  126.) 

Indictment  against  the  defendant  on  the  statute  33  Hen.  VIII,  c 
9,  for  shooting  in  a  gun,  quod  non  habens  terras  aut  tenementa  ad 
valorem  nono  die  ApriHs  anno,  &c.  apud,  &c.  sagittavit. 

Exception  was  taken  and  allowed,  for  that  "he  not  having"  shall 
be  intended  to  relate  to  the  time  of  the  indictment,  and  not  to  the  time 
of  the  fact. 

And  therefore  quashed.^ ^ 

MOLETT  V.  STATE. 

(Supreme  Court  of  Alabama,  1S59.    33  Ala.  408.) 

A.  J.  Walker,  C.  J.'*  The  indictment,  found  on  the  17th  Novem- 
ber, 1857,  alleges  the  oflense  to  have  been  committed  before  the  find- 
ing of  the  indictment  and  after  the  1st  day  of  March,  1856.  The  of- 
fense may  have  been  committed  after  the  1st  day  of  March,  1856,  and 
not  within  12  months  before  the  finding  of  the  indictment.  The  in- 
dictment fails,  therefore,  to  show  the  commission  of  the  misdemeanor 
within  the  period  prescribed  by  the  statute  of  limitations.  Before  the 
Code,  this  would  have  been  a  fatal  objection;  but  it  is  not  now  neces- 
sary to  make  any  averment  that  the  indictable  act  was  done  within  the 
time  mentioned  in  the  statute  of  limitations.  No  specification  of  the 
time  is  necessary,  unless  time  is  a  material  ingredient  of  the  offense. 
Code,  §  3512;   and  form  No.  1,  page  698.^^ 

The  forms  prescribed  by  the  Code  make  sufficient  an  allegation  that 
the  offense  was  committed  before  the  finding  of  the  indictment.  It 
cannot  vitiate  that  the  indictment,  instead  of  embracing  within  its 
allegation  all  past  time,  limits  to  a  certain  specified  day  in  the  past  the 
period  within  which  the  offense  was  committed.     *     *     * 

The  judgment  of  the  court  below  is  reversed,  and  the  cause  re- 
manded. 

16  Accord:     Sikes  v.   State,  67  Ala.  77   (ISSO). 

16  Part  of  this  case  is  omitted. 

IT  Many  states  have  similar  statutes.  See  State  v.  Aclcerman,  51  La.  Ann. 
1213,  26  South.  80  (1S99) ;  State  v.  Peters,  107  N.  C.  876,  12  S.  E.  74  (1S90). 
See.  also,  Fleming  v.  State,  136  Ind.  149,  36  N.  E.  154  (1S94). 

Compare  Ruge  v.  State,  62  Ind.  388  (1878). 


92  THE    INDICTMENT  (Ch.  9 

STATE  V.  BEATON. 

(Supreme  Judicial  Court  of  Maine,  18S7.    79  Me.  314,  9  Atl.  728.) 

On  exceptions  by  respondent  from  Supreme  Judicial  Court,  Lincoln 
jounty. 

An  appeal  from  the  decision  of  a  trial  justice  on  a  complaint  and 
warrant  for  fishing  for  and  catching  lobsters  in  violation  of  law. 

Walton,  J.  Neither  a  complaint  nor  an  indictment  for  a  criminal 
offense  is  sufficient  in  law,  unless  it  states  the  day,  as  well  as  the  month 
and  year,  on  which  the  supposed  offense  was  committed.  In  this  par- 
ticular, the  complaint  in  this  case  is  fatally  defective.  It  avers  that 
"on  sundry  and  divers  days  and  times  between  the  twenty-third  day  of 
September,  A.  D.  1885,  and  the  thirtieth  day  of  September,  A.  D. 
1885,"  the  defendant  did  the  acts  complained  of.  But  it  does  not  state 
any  particular  day  on  which  any  one  of  the  acts  named  was  commit- 
ted. Such  an  averment  of  time  is  not  sufficient.  State  v.  Baker,  34 
Me.  52;   State  v.  Hanson,  39  Me.  337,  and  authorities  there  cited. 

Exceptions  sustained.    Complaint  quashed. 

Peters,  C.  J.  and  Virgin,  Libbey,  Emery,  and  Haskell,  J  J,,  con- 
curred. 


STATE  V.  CITY  OF  AUBURN. 

(Supreme  Judicial  Court  of  Maine,  1S94.     86  Me.  276,  29  Atl.  1075.) 

Peters,  C.  J.  The  city  of  Auburn,  having  been  indicted  for  its  fail- 
ure to  open  a  highway  laid  out  within  its  limits  by  county  commis- 
sioners, claims,  upon  demurrer  thereto,  that  the  indictment  found 
against  them  is  insufficient  in  some  respects. 

It  is  contended  that  it  is  bad  because  the  city  of  Auburn,  so  named 
in  the  indictment,  is  not  described  as  a  corporation  of  any  kind,  and 
more  especially  because  there  is  no  averment  that  the  city  of  Auburn 
is  situated  within  any  county  of  this  state.  Such  omissions  are  un- 
doubtedly formal  defects,  indicating  a  want  of  care  in  the  work  of  the 
pleader  that  is  not  to  be  commended.  The  omissions  are  supplied, 
however,  to  some  extent  by  certain  indirect  allegations  contained  in 
the  indictment.  The  way  is  alleged  to  have  been  laid  out  by  the  com- 
missioners of  Androscoggin  county  within  the  city  of  Auburn,  and  the 
indictment  avers  that  it  was  found  at  a  term  of  court  begun  and  holden 
at  Auburn  within  and  for  the  county  of  Androscoggin.  Aided  by  these 
implications,  we  deem  it  warrantable  for  us  to  determine  as  a  matter 
of  judicial  knowledge  that  the  city  of  Auburn  described  in  the  indict- 
ment is  the  municipal  corporation  of  that  name  situated  in  our  county 
of  Androscoggin.  The  case  of  Com.  v.  Desmond,  103  Mass.  445,  sup- 
ports this  view. 


Ch.  9)  THE    INDICTMENT  93 

The  indictment  further  alleges  that  the  mandate  of  the  commission- 
ers required  that  the  way  should  be  opened  and  built  by  the  city  within 
three  years  from  March  31,  1890,  and  that  for  the  period  of  time  be- 
tween March  31,  1890,  and  March  31,  1893,  as  well  as  ever  since,  the 
city  had  wholly  neglected  to  open  and  build  the  same ;  and  it  is  con- 
tended by  the  defense  that  such  an  averment  as  to  the  time  of  the  com- 
mission of  the  alleged  offense  is  bad  for  its  generality.  In  support 
of  this  objection  the  defense  invokes  the  general  principle  of  pleading, 
recognized  in  our  own  cases,  that  some  particular  day  must  be  named 
in  the  indictment  on  which  the  alleged  offense  was  committed,  and 
that,  too,  even  if  the  oft'ense  be  set  out  with  a  continuando. 

In  our  view,  this  criticism  does  not  fairly  apply  to  an  indictment  like 
the  present.  The  principle  referred  to  applies  mostly  to  offenses  of 
commission,  and  not  to  those  of  omission ;  to  acts  done,  rather  than 
acts  omitted  to  be  done;  to  offenses  accomplished  by  active,  and  not 
passive,  means.  Of  course,  the  principle  contended  for  would  apply 
as  strongly  to  an  act  of  nonfeasance  as  to  an  act  of  misfeasance,  when 
such  act  can  be  logically  and  correctly  described  as  having  been  done 
on  some  particular  day,  or  upon  some  continuous  days.  In  the  pres- 
ent case  it  would  not  be  true  to  charge  the  offense  as  committed  on 
either  the  first  or  the  last  day  of  the  three  years  allowed  the  city  with- 
in which  to  construct  the  contemplated  road,  or  on  any  intermediate 
day  or  days,  or  as  committed  upon  any  time  short  of  the  whole  period 
of  three  years.  The  oft'ense  was  growing  for  three  years,  culminating 
at  the  expiration  of  that  period.  The  ruling  of  the  court  on  an  analo- 
gous question  in  Smiley  v.  Inhabitants  of  Merrill  Plantation,  84  Me. 
222,  24  Atl.  872,  sustains,  as  far  as  it  goes,  our  conclusion  here. 

Exceptions  overruled.^* 


STATE  V.  KENNEDY. 

(Court  of  Errors  and  Appeals  of  Louisiana,  1845.    8  Rob.  590.) 

King,  J.  *  *  *  ^^  The  indictment,  after  stating  the  mortal  blow, 
with,  the  usual  averments  of  time  and  place,  proceeds:  "Of  which 
mortal  wound,  so  given  by  the  said  Samuel  Kennedy,  with  the  deadly 
weapons  aforesaid,  to  the  said  Benjamin  Wood  Wait,  the  said  Benja- 
min Wood  Wait  did  then  and  there  suffer  and  languish,  and  languish- 
ing did  live,  and  a  few  hours  after  did  die  of  the  said  mortal  wound." 

No  principle  appears  to  be  better  settled  than  that,  in  indictments  for 
high  oftenses,  those  termed  felonies  at  common  law,  the  averment  of 

18  "Another  brancti  of  this  objection  viz.,  that  the  time  of  committing  the 
offense  is  not  certainly  averred,  by  the  words  'on  or  about,'  we  consider  answer- 
ed by  the  remarks  already  made.  The  two  latter  words  in  this  averment  have 
no  meaning  in  this  place,  and  are  surplusage."  Church,  C.  J.,  in  Rawson  v. 
State,  19  Conn.  292  (184S).  Accord:  Under  statutes.  State  v.  Hoover.  31 
Ark.  G76  (1877).  But  see  State  v.  Baker,  34  Me.  52  (1852) ;  State  v.  O'Keefe, 
41  Vt.  691  (1869). 

18  Part  of  this  case  is  omitted.    NichoUs,  J.,  dissented. 


94  THE    INDICTMENT  (Ch.  9 

time  and  place  is  to  be  repeated  to  every  issuable  and  triable  fact. 
When  these  have  been  once  set  forth  with  certainty,  they  may,  in 
every  subsequent  averment,  be  -referred  to  by  the  words  "then  and 
there,"  which  are  deemed  equivalent  to  a  repetition  of  the  time  and 
place!  The  time  should  be  stated  with  such  certainty  that  no  doubt 
can  be  entertained  of  the  period  really  intended ;  and  such  is  the  pre- 
cision required  in  this  respect  that  any  uncertainty  in  the  averment  of 
time  and  place  will  vitiate  the  indictment. 

The  material  facts  in  murder  are  the  mortal  stroke  and  the  con- 
sequent death,  and  the  death  must  appear  upon  the  record  to  have  oc- 
curred within  a  year  and  day  from  the  time  when  the  mortal  stroke 
was  given.  The  averment,  then,  of  each  of  these  material  facts  must, 
under  the  well-established  rules  of  criminal  pleading,  be  accompanied 
by  an  allegation  of  a  certain  time  and  place.  Thus,  to  aver  that  the 
assault  was  made  on  two  days,  as  on  the  1st  and  2d  of  May,  or  on  an 
impossible  day,  is  such  an  uncertainty  as  will  vitiate  the  indictment. 

If  an  indictment  for  murder  state  that  A.,  at  a  given  time  and 
place,  having  a  sword  in  his  right  hand,  did  strike  B.,  it  is  bad,  for 
the  time  and  place  relate  to  the  having  the  sword,  and  it  is  not  stated 
when  or  where  the  stroke  was  given. 

A.,  at  a  certain  time  and  place,  made  an  assault  upon  B.,  et  eum 
cum  gladio  percussit,  was  held  to  be  bad,  because  it  was  not  said  ad- 
tunc  et  ibidem  percussit;  the  copulative  conjunction  "and,"  without 
the  repetition  of  the  time  and  place  to  this  material  ingredient  of  the 
offense,  being  deemed  insufficient.  In  misdemeanors  the  same  strict- 
ness is  not  required.  1  Chittv,  218,  219;  Starkie,  Cr.  PI.  58,  62,  65; 
2  Hale,  178;  Archbold,  Cr.  PI.  34;  2  Hawk.  c.  23,  §  88.     *     *     * 

It  is  therefore  ordered  that  the  judgment  of  the  inferior  court  be  re- 
versed, that  the  verdict  in  the  case  be  set  aside,  and  the  judgment 
thereon  arrested.'^** 

20  The  place  of  every  material  fact  must  be  stated  with  sufficient  certainty 
to  show  that  the  court  has  jurisdiction  of  the  cause  (State  v.  Johnson,  32  Tex. 
96  [1809]),  and  to  enable  the  defendant  to  prepare  his  defense,  and  to  plead 
the  judgment  upon  the  indictment  in  bar  of  a  second  prosecution  for  the  same 
offense  (State  v.  Cotton.  24  N.  H.  143  [IS.ll]).  It  is  usual  to  state  the  county 
in  which  the  offense  was  committed ;  but  it  is  sufficient,  at  least  in  indict- 
ments for  offenses  not  capital  (Commonwealth  v.  Springfield,  7  Mass.  9  [ISIO]), 
to  give  a  more  particular  description  of  the  place,  as  a  certain  town,  if  the 
court  can  take  judicial  cognizance  of  the  fact  that  such  place  is  entirely 
within  the  county  (Vanderwerker  v.  People,  5  Wend.  530  [18.30]). 

If  the  jurisdiction  of  the  court  is  not  coextensive  with  the  county.  It  is  not 
sutlicient  to  state  that  the  offense  was  committed  in  the  county.  A  more  mi- 
nute description  of  the  place  is  necessary.  People  v.  Wong  Wang,  92  Cal.  277, 
28  Pac.  270  (1891).  So  if  the  act  alleged  be  a  crime  only  when  done  in  a  par- 
ticular locality,  it  must  be  averred  that  it  was  done  in  such  locality.  State 
V.  Ilogan.  31  Mo.  340  (1801).  For  the  venue  of  offenses  begun  In  one  locality 
and  completed  in  another,  see  Connor  v.  State,  29  Fla.  455,  10  South.  891,  30 
Am.  St.  Kep.  12G  (1892) ;   Morrissey  v.  People,  11  Mich.  327  (1803). 

If  a  minor  locality  has  been  averred,  it  need  not  be  proved  as  laid.  Proof 
that  the  offense  was  committed  anywhere  within  the  jurisdiction  of  the  court 
will  suffice  (Commonwealth  v.  Tolliver,  8  Gray  [Mas.s.]  380,  09  Am.  Dec.  252 
(1857]),  unless  the  statement  of  the  minor  locality  is  necessary  to  a  proper 


Ch.  9)  THE    INDICTMENT 


95 


III.  Description  o?  Persons  Connected  with  the  Oeeense 


REX  V. 


(Court  for  Crown  Cases  Reserved,  1S22.     Russ.  &  R.   4S9.) 

The  prisoner  was  indicted  at  the  Old  Bailey  sessions  in  January, 
1822,  by  the  description  of  a  person,  whose  name  was  to  the  jurors 
unknown.  The  offense  with  which  he  was  charged  was  that  of  pub- 
lishing a  blasphemous  and  seditious  libel. 

It  appeared  that,  when  apprehended,  he  refused  to  declare  his  name 
before  the  magistrate,  and  the  prosecutors,  not  being  able  to  discover 
his  name,  indicted  him  as  a  man  whose  name  was  unknown  to  the 
jurors.  When  called  to  the  bar,  the  indictment  was  read  to  him,  and 
he  then  refused  to  plead,  and  was  remanded.  At  the  following  ses- 
sions, in  the  month  of  February,  the  prisoner  was  again  called  to  the  • 
bar,  and  by  the  advice  of  his  counsel  put  in  a  demurrer  in  writing  to 
the  indictment.  The  prosecutors  had  time  given  them,  until  the  next 
morning,  to  reply ;  but,  before  they  could  do  so,  the  prisoner  by  his 
counsel  moved  the  court  to  be  permitted  to  withdraw  his  demurrer, 
which  was  granted ;  and  being  then  called  on  for  his  plea,  he  pleaded 
not  guilty ;  and,  being  told  that  he  must  plead  by  some  name,  he  re- 
fused to  give  in  any  name.  The  learned  recorder  was  of  opinion  that 
his  plea  could  not  be  received  without  a  name,  and  the  prisoner  was 
again  remanded  for  want  of  a  plea.  At  the  following  sessions  he  was 
again  called  on  to  plead,  and  again  pleaded  not  guilty,  but  refused 
to  put  in  that  plea  by  any  name.  He  was  again  told  that  the  court 
could  not  receive  his  plea,  unless  he  would  plead  by  some  name ;  and, 
as  he  persevered  in  his  refusal,  he  was  again  remanded. 

As  this  case  appeared  to  be  without  precedent  and  might  materially 
afi'ect  the  administration  of  justice,  the  learned  recorder  requested  the 

description  of  ttie  offense.  (People  v.  Slater,  5  Hill  [N.  T.]  401  [1S43]),  Com- 
monwealth V.  Heffrou.  102  Mass.  14S  [1SG9]).  Cf.  State  v.  Verden,  24  Iowa, 
12G  (1S67).  If  such  description  is  essential,  it  must  be  proved  as  described, 
even  though  the  description  be  unnecessarily  minute.  State  v.  Kelle.v,  GG  N. 
H.  577,  29  Atl.  843  (1891).  Where  the  venue  has  been  properly  stated  in  the 
caption,  or  commencement,  it  is  sufficient  to  charge  that  the  act  was  done 
"then  and  there"  (State  v.  Slocum,  8  Blackf.  [Ind.]  315  [1S46].  or  "in  the 
countv  aforesaid"  (Eaves  v.  State,  113  Ga.  749,  39  S.  E.  318  [1901]). 

St.  14  &  15  Vict.  c.  100,  §  23.  provides:  "It  shall  not  be  necessary  to  state 
the  venue  in  the  body  of  any  indictment,  but  the  county,  city  or  other  juris- 
diction named  in  the  margin  thereof  shall  be  taken  to  be  the  venue  for  all  the 
facts  stated  in  the  body  of  such  indictment:  Provided  that  in  cases  where 
local  description  is  or  hereafter  shall  be  required,  such  local  description  shall 
be  iriveu  in  the  body  of  the  indictment.  *  *  * "  More  or  less  similar 
statutes  have  been  enacted  in  some  of  the  United  States.  See  State  v.  Keel, 
54  Mo.  182  (1873).  Code  Cr.  Proc.  N.  Y.  §  284.  makes  it  a  requisite  for  a 
valid  indictment  that  "it  can  be  understood  therefrom  that  the  crime  was 
committed  at  some  place  within  the  jurisdiction  of  the  court."  See  People 
V  Horton,  G2  Hun,  GIO.  17  N.  Y.  Supp.  1  (1892).  A  similar  provision  is  con- 
tained in  Comp.  Laws  Nev.  §  4208.  See  State  v.  Buralli,  27  2sev.  41,  71  Pac. 
532  11903). 


96  THE    INDICTMENT  (Ch.  9 

opinion  of  the  judges  upon  the  following  points:  First,  whether  the 
prisoner  could  be  admitted  to  put  a  plea  on  the  record  without  a  name; 
secondly,  whether  such  a  plea  should  be  treated  as  a  mere  nullity,  and 
the  prisoner  be  remanded  from  time  to  time,  as  in  contempt  for  not 
pleading;  thirdly,  whether  the  refusal  to  plead  by  name  would  en- 
title the  court  to  enter  up  judgment  by  default;  and,  fourthly,  wheth- 
er in  case  the  prisoner  should  ultimately  plead  by  name,  the  court 
could  proceed  to  try  him  upon  this  indictment  or  should  quash  the 
indictment  as  defective,  and  direct  a  fresh  indictment  to  be  preferred 
against  him  by  the  name  by  which  he  might  plead. 

In  Trinity  term,  1822,  this  case  being  presented  for  consideration, 
some  of  the  learned  judges,  before  whom  it  was  discussed,  suggested 
that  the  prisoner  might  be  indicted  as  a  person  whose  name  was  un- 
known, but  who  was  personally  brought  before  the  jurors  by  the  keeper 
of  the  prison.  An  indictment  was  preferred  accordingly,  and  the  pris- 
oner was  convicted. 


BARNESCIOTTA  v.  PEOPLE. 

(Supreme  Court  of  New  York,  1877.    10  Hun,  137.) 

Davis,  P.  J.^^  The  plaintiffs  in  error  were  indicted  for  keeping  a 
disorderly  house.  The  plaintiff  in  error  John  Barnesciotta  was  named 
in  the  indictment  by  that  name,  follov/ed  by  the  words,  "otherwise 
called  Garibaldi."  On  being  arraigned,  his  counsel  read  and  filed  the 
following  plea: 

"Now  comes  the  defendant,  John  Barnesciotta,  and  pleads  to  the 
indictment,  that  he  is  not  now,  and  never  was,  known  by  the  name  of 
Garibaldi,  which  he  verifies.  John  Barnesciotta. 

"Sworn  this  25th  day  of  September,  187G. 

"Wm.  F.  Howe,  Commissioner  of  Deeds,  N.  Y.'* 

The  district  attorney  filed  a  demurrer  to  said  plea,  and  the  said 
plaintiff  in  error  joined  in  demurrer.  The  court  overruled  the  demur- 
rer, and  gave  judgment  thereon  for  the  people.  The  demurrer  was 
properly  overruled.  The  true  name  preceded  the  alias  dictus,  and  in 
such  a  case  a  plea  in  abatement  will  not  be  sustained.  Reid  v.  Lord,  4 
Johns.  118.  It  was  quite  immaterial  whether  the  plaintiff  in  error  was 
ever  known  by  the  name  of  Garibaldi,  and  the  indictment  did  not  so 
aver.  If  his  true  name  be  John  Barnesciotta,  as  the  plea  in  abatement 
must  be  taken  to  admit,  then  the  'alias  dictus  becomes  wholly  imma- 
terial, and  is  not  capable  of  working  prejudice  to  the  plaintiff  in  error. 

Besides,  the  plea  was  defective  in  form.  It  does  not  aver  the  true 
name  except  argumentatively,  and  does  not  aver  that  he  is  not  in- 
dicted by  his  true  name ;  and  it  does  not  meet  the  averment  of  the  in- 
dictment, which  is  not  that  the  defendant  was  known  by  the  name  of 
"Garibaldi,"  but  that  "John  Barnesciotta"  was  otherwise  called  "Gari- 

21  Part  of  this  case  is  omitted. 


Ch.  9)  THE    INDICTMENT  97 

baldi,"  which  may  be,  and  probably  was,  a  nickname  by  which  he  was 
sometimes  called  by  his  associates.  There  is  no  reason  for  interfer- 
ance  with  the  conviction  or  judgment  on  this  ground.  The  demurrer 
was  a  proper  mode  of  disposing  of  the  plea  on  the  record.  Rex  v. 
Clark  alias  Jones,  1  D.  &  R.  43.  •  *  * 
Judgment  and  conviction  affirmed.^* 


COMMONWEALTH  v.  BUCKLEY. 

(Supreme  Judicial  Court  of  Massachusetts,  Plymouth,  1SS7.     145  Mass.  181, 

13  N.  E.  368.) 

Exceptions  from  superior  court,  Plymouth  county;  Thompson, 
Judge. 

Indictment  charging  that  the  defendants,  on  a  certain  day,  to  wit, 
at  Brockton,  on  May  14,  18S7,  "knowingly,  willfully,  and  maliciously 
did  verbally  threaten  to  accuse  one  Frank  E.  White,  of  Brockton, 
aforesaid,  of  having  committed  the  crime  of  burning  a  building  not 
his  own,  to  wit,  the  store  of  John  D.  White,  by  words  then  and  there 
knowingly,  willfully,  and  maliciously  spoken  of  and  to  the  said  Frank 
E.  White,  substantially  as  follows :  'You  [meaning  the  said  Frank  E. 
White]  are  the  man  that  set  the  fire,  and,  unless  you  give  us  one  hun- 
dred dollars,  we  will  make  it  hot  for  you.  We  will  make  a  jail  bird  of 
you' — with  intent  then  and  there  to  extort  money,  to  wit,  the  sum  of 
one  hundred  dollars,  from  him,  the  said  Frank  E.  White,  against  the 
peace,"  etc.  At  the  trial  in  the  superior  court,  it  was  proved,  but  the 
attention  of  the  court  was  not  called  to  the  fact  until  after  the  com- 
mencement of  the  charge,  that  the  name  of  the  person  referred  to  and 
designated  in  said  indictment  as  Frank  E.  White  was  Frank  A.  White, 
and  not  Frank  E.  White,  and  there  was  no  evidence  tending  to  show 
that  said  Frank  A.  White  had  ever  been  known  or  called  Frank  E. 
White,  until  so  designated  in  the  indictment;  and  thereupon  the  de- 
fendants asked  the  court  to  rule  that  there  was  a  variance  between  the 
allegations  in  said  indictment  and  the  proof,  and  that,  by  reason  of 
said  variance,  the  jury  should  return  a  verdict  of  not  guilty.  The  court 
refused  to  so  rule.     *     *     *  ^^ 

Holmes,  J.  The  name  of  the  person  threatened  is  necessary  to  the 
identity  of  the  offense  charged  in  the  indictment,  and  therefore  must 
be  proved  as  set  forth.  Com.  v.  Mehan,  11  Gray,  321.  It  is  settled 
in  this  commonwealth  that  a  middle  name  or  initial  is  part  of  the  name, 
and  a  variance  in  regard  to  it  is  fatal.  Com.  v.  Perkins,  1  Pick.  388 : 
Com.  V.  Hall,  3  Pick.  262;  Com.  v.  Shearman,  11  Cush.  546.  The 
ruling  that  there  was  no  variance  if  Frank  A.  White  was  the  person 
called  Frank  E.  White  in  the  indictment,  probably  went  upon  the 

2  2  See.  also,  Falkner  v.  State,  151  Ala.  77,  44  South.  409  (1907).  Evans  v 
State,  62  Ala.  6  (1878). 

2  3  Part  of  the  statement  of  facts  is  omitted. 
Mik.Cr.Pk. (Abridged  Ed.) — 7 


98  THE    INDICTMENT  (Ch.  9 

ground  that  the  E.  might  be  rejected  as  surplusage,  as  is  held  in  some 
states.^*  It  cannot  be  said  as  matter  of  law  that  A.  and  E.  are  the 
same.  There  was  no  evidence  that  the  party  was  ever  called  Frank  E. 
White. 

Exceptions  sustained.  ^' 


REGINA  V.  BISS. 

(Court  for  Crown  Cases  Reserved,  1839.    2  Moody,  93.) 

The  prisoner  was  tried  and  convicted  before  Lord  Abinger,  at  the 
Essex  Lent  assizes,  1839. 

That  she  on  the  15th  of  August,  at  the  parish  of  Lutton,  in  the 
county  of  Essex,  on  an  infant  male  child  aged  about  six  weeks,  and 
not  baptized,  feloniously,  wihfully,  and  of  her  mahce  aforethought, 
did  make  an  assault,  and  that  she  with  her  hands  feloniously,  etc.,  did 
force,  cast,  and  throw  said  male  child  into  a  pond  of  water  there,  by 
means  whereof  said  male  child  in,  by,  and  with  the  waters  of  said 
pond  was  then  and  there  choked,  suffocated,  and  drowned,  of  which 
said  choking,  suffocating,  and  drowning  said  male  child  died ;  and 
that  she  the  said  male  child,  in  manner  and  form  aforesaid,  feloniously, 
willfully,  and  of  her  malice  aforethought  did  kill  and  murder. 

24  See  State  v.  Manning,  14  Tex.  402  (1855);  O'Connor  v.  State,  97  Ind. 
104  (1884) ;  People  v.  Cook,  14  Barb.  (N.  Y.)  250  (lSr)2).  It  Is  held  in  some 
states  that  it  is  not  necessary  to  insert  the  middle  name  or  initial ;  but.  if 
Inserted,  it  must  be  correctly  stated.  Price  v.  State,  19  Ohio,  423  (1850) ;  State 
V.  Hughes,  1  Swan  (Tenn.)  261  (1851). 

2  5  Accord :   Reg.  v.  James,  2  Cox,  O.  C.  227  (1847).    Cf.  Rex  v. ,  Q  Car. 

&  P.  408  (1834). 

The  terms  junior  and  senior  are  no  part  of  the  name,  and  the  omission  or 
Insertion  of  either  does  not  render  the  indictment  defective.  Rex  v.  Peace, 
3  B.  &  Aid.  579  (1S20) ;  People  v.  Collins,  7  Johns.  (N.  Y.)  549  (1811).  At 
least  where  it  does  not  appear  that  there  are  two  persons  of  the  name,  or 
that  the  party  was  misled.    San  Francisco  v.  Randall,  54  Cal.  408  (1880). 

A  person  may  be  described  either  by  his  baptismal  name  or  by  a  name  by 
which  he  is  commonly  known.  Wilson  v.  State,  G9  Ga.  224  (1882) ;  Alexander 
V.  Commonwealth,  105  Pa.  1  (1884). 

Initials. — Some  of  the  earlier  cases  hold  that  an  indictment  is  defective  if, 
Instead  of  stating  the  Christian  name  In  full,  it  describes  a  person  by  the 
initials  of  his  Christian  names.  Gardner  v.  State,  4  Ind.  632  (1853),  and  see 
Smith  V.   State,  8  Ohio,  294  (1838). 

Later  cases  hold  that,  if  he  is  known  by  his  Initials,  his  name  need  not 
be  more  fully  stated.  State  v.  McMillan,  68  N.  C.  440  (1873) ;  State  v.  Apple- 
ton,  70  Kan.  217,  78  Pac.  445  (1904).  Others  that  the  initials  are  sufficient 
In  all  cases.     Eaves  v.  State,  113  Ga.  749,  39  S.  E.  318  (1901). 

The  defendant  must  object  by  a  plea  in  abatement,  in  which  he  states  his 
true  name,  when  the  indictment  states  his  name  incorrectly.  Smith  v.  State, 
8  Ohio,  294  (1S3S)  ;  State  v.  Brunell,  29  Wis.  43.")  (1872) ;  Verberg  v.  State, 
137  Ala.  73,  34  South.  §48,  97  Am  St.  Rep.  17  (1902).  The  misstatement  of  the 
name  of  a  third  person,  when  the  name  of  such  person  is  material.  Is  a  fatal 
variance  (Collins  v.  State,  43  Tex.  577  [1875]),  unless  It  Is  shown  that  the  per- 
son was  also  known  by  the  name  alleged.  In  which  case  the  <iuestion  of 
variance  is  for  the  jury  (Commonwealth  v.  Warren.  I(i7  Mass.  53  [1896]),  and 
may  be  taken  advantage  of  by  motion  to  quash  or  demurrer.  But  such  mis- 
nomer is  cured  by  verdict.  State  v.  Rook,  42  Kan.  419,  22  Pac.  626  (1889); 
State  V.  McMillan,  68  N.  0.  440  (1873) ;  State  v.  Rudolph,  a  IIIU,  Law  (S.  C.) 
257  (1837). 


Ch.  9)  THE    INDICTMENT  99 

An  objection  was  made  by  Mr.  Dowling,  the  prisoner's  counsel,  that 
the  indictment  neither  stated  the  name  of  the  child,  nor  that  the  name 
was  unknown  to  the  jurors. 

The  question  reserved  was  whether  that  were  a  good  objection. 

The  case  was  considered  by  all  the  judges  except  Vaugiian,  J., 
GuRNEY,  B.,  Williams,  J.,  and  Erskine,  J.,  in  Easter  term,  1839, 
and  they  all  thought  the  objection  good,  and  that  the  judgment  ought 
to  be  arrested.^* 


REX  V.  FOSTER. 

(Court  for  Crown  Cases  Reserved,  1820.     Russ.  &  R.  412.) 

The  prisoner  was  tried  before  Mr.  Baron  Garrow  at  the  Maidstone 
Lent  assizes  in  the  year  1820,  for  committing  an  unnatural  crime  on 
one  John  Whyneard. 

The  person  on  whom  this  crime  was  convicted,  being  called  as  a 
witness,  said  that  his  name  was  spelt  Winyard,  but  it  was  pronounced 
Winnyard. 

The  prisoner  was  convicted,  and  received  sentence  of  death,  but  ex- 
ecution was  respited,  in  order  that  the  opinion  of  the  judges  might  be 
taken  on  the  objection  that  the  name  of  the  witness  was  misspelt. 

In  Easter  term,  1820,  the  judges  took  this  case  into  consideration, 
and  held  the  conviction  right.^^ 


STATE  V.  McDowell. 

(Supreme  Court  of  Indiana,  1S41.    6  Blackf.  49.) 
Dewey,  J.    This  was  a  prosecution  against  a  justice  of  the  peace  for 
oppression  under  color  of  his  office.     The  circuit  court  quashed  the 
indictment  on  the  motion  of  the  defendant. 

The  objection  urged  against  the  indictment  is  that  the  defendant  is 
not  described  by  the  addition  of  his  degree,  or  mystery,  and  place  of 
residence. 

By  the  common  law  no  addition  was  required  in  indictments  against 
persons  under  the  degree  of  a  knight.  1  Chitt.  C.  L.  204.  The  stat- 
ute of  additions,  1  Hen.  V,  c.  5,  enacts  that  defendants  shall  be  de- 
scribed by  adding  to  their  names  their  estate,  degree,  or  mystery,  and 
place  of  residence,  in  all  cases  in  which  "the  exigent  shall  be  awarded." 

26  Compare  Reg.  v.  Hogg,  2  Moo.  &  R.  3S0  (1841);  Reg.  v.  Willis,  1  Den. 
C.  C.  80  (1845). 

27  Whether  the  names  are  idem  sorbins  is  for  the  jury.  Reg.  v.  Davis,  2 
Den.  C.  C.  231  (1851).  See,  also,  Commonwealth  v.  Warren,  143  Mass.  568, 
10  N.  E.  178  (1887). 


LOO  THE    INDICTMENT  (Ch.  9 

It  has  been  held,  in  the  construction  of  this  statute,  that  in  prosecu- 
tions which  cannot  be  attended  by  the  process  of  outlawry,  the  indict- 
ment need  not  give  the  addition  of  the  defendant.  1  Chitt.  Cr.  L.  206 ; 
Bac.  Abr.  Indictment,  2 ;  Id.  Misnomer,  2 ;  Rex  v.  Brough,  1  Wils. 
244 ;  Cro,  Eliz.  148.  The  exigent,  being  a  step  in  the  proceedings  of 
outlawry,  is  unknown  to  our  law. 

It  is,  therefore,  evident  that  the  statute  of  additions,  from  its  own 
terms,  is  not  applicable  to  prosecutions  in  this  state ;  and  it  is  equally 
clear  that  the  common  law  does  not  require  the  defendant  to  be  de- 
scribed by  his  addition  in  our  indictments. 

The  circuit  court  erred  in  quashing  the  indictment.^* 


IV.  Descriptign,  Ownership^  and  Value  o?  Property 

The  certainte  of  the  name  of  the  person  to  whom  the  offense  is  done, 
is  also  in  most  cases  requisit.  But  yet  if  the  endictment  be  quod  bona 
et  catalla  cuiusdam  hominis  ignoti  felonice  cepit,  or  quendam  ignotum 
felonice  depredavit,  it  is  good,  because  of  the  King's  advantage  of  for- 
feiture thereby.     Fitz.  Endictment,  12. 

You  may  see  an  endictment  (Fitz.  Endict.  9)  quod  A.  verberavit, 
et  XX  Jaccos  prety  &c.  was  thought  sufficient  without  showing  to 
whom  the  Jackes  did  belong:  whereat,  M.  Stanford  (fol.  95)  marvel- 
eth,  saying  that  hee  saw  no  cause  why  it  should  be  good,  unless  it  were 
for  that  the  matter  could  not  bee  made  more  certaine.  But  peradven- 
ture  certaintie  in  endictments,  was  not  in  those  daies  thought  so  need- 
ful as  now  it  is  holden.     *    *    * 

If  the  endictment  be,  quod  A.  verberavit  B.  and  unum  equum  precy 
XX.  s.  felonice  cepit,  and  doth  not  say,  ipsius  B.  yet  it  is  good  enough. 
30  H.  6,  Fitz.  Endict.  9.  But  if  it  be  qd.  unum  equum  praedict'  J.  cepit, 
and  there  were  no  mention  of  J.  before,  then  it  is  void.     9  E.  4,  1. 

If  the  goods  of  a  man  be  taken  and  he  maketh  executors,  and  dyeth, 
the  endictment  shall  be  bona  testatorius ;  but  if  they  were  taken  after 
his  death,  it  shall  be  bona  testatoris  in  custodia  executorum  existen- 
tia:^®  if  the  indictment  be  quod  A.  furatus  est  tunicam  hominis  ig- 
noti quern  invenit  mortuum,  that  is  not  good.     11  R.  2,  Fitz.  Endict 

28  The  statute  of  additions  has  been  held  to  be  In  force  in  a  few  states. 
See  1  Bish.  New.  Cr.  Prac.  §  674.  Act  14  &  15  Vict.  c.  100,  §  24,  abolished  the 
necessity  for  the  addition. 

Where  the  addition  of  defendant's  decree,  mystery,  and  residence  Is 
necessary,  the  omission  Is  cured  by  pleading  to  the  indictment.  Rex  v.  ITan- 
nam,  1  Leach.  C  C.  420  (17S7).  And  a  fortiori  by  verdict.  Commonwealth 
V.  Jackson,  1  Grant,  Gas.  (Pa.)  262  (1855). 

29  "Or  it  may  be  general  bona  ipsius  A" — the  executor.  2  Hale,  P.  C.  ISl. 
See,  also,  U.  S.  v.  ISIason,  2  Cranch,  C.  O.  410.  Fed.  Cas.  No.  15,728  (182.",) ; 
Crockett  v.  State,  5  Tex.  App.  526  (1879).  "A  hog.  the  property  of  a  marrifd 
woman,  living  with  her  husband,  who  has  possession  of  it,  is  not  incorrectly 
described  In  the  indictment  for  stealing  it  as  the  property  of  the  husband." 
Manninc,  J.,  in  Lavender  v.  State,  60  Ala.  60  (1877). 


Ch.  9)  THE    INDICTMENT  101 

15.  *  *  ♦  If  my  goods  be  taken  by  a  trespassour  and  an  other  taketh 
them  from  him,  the  endictment  shall  be  bona  of  him  which  had  the  last 
possession.^"  But  if  I  baile  goods  to  one,  from  whom  they  be  robbed, 
then  it  shall  be  bona  of  me  in  his  keeping,  Marr.^^  *  *  *  If  an  en- 
dictment be,  bona  capellas  in  cnstodia  &c.  or  bona  domus,  or  Ecclesiae 
tempore  vacationis,  it  is  good.    7  E.  4,  14.^^ 

The  name  (and  value)  of  the  thing  in  which  the  offence  is  commit- 
ted, ought  also  to  be  comprised  in  the  endictment:  for  an  endictment 
of  the  taking  bona  et  catalla,  whether  it  be  in  trespas  or  felonie,  is 
not  g'ood,  for  the  uncertaintie  what  goods  they  be:  and  if  it  be  of 
dead  things,  it  may  be  bona  et  catalla,  expressing  the  names  thereof 
in  certaintie;  but  if  it  be  of  things  living,  it  shall  not  say,  bona  et 
catalla,  but  equum,  bovem,  ovem,  &c. 

Again  the  value  (or  price)  of  the  thing  is  commonly  to  be  declared 
in  felonie,  to  make  it  appeare  from  petite  larceny.  *  *  *  j^  all  cas- 
es (saith  M.  Marr.)  where  the  number  ought  to  be  expressed  in  the 
endictment,  there  also  it  must  be  said,  prety,  or  ad  valentiam ;  *  *  i= 
VvHiere  it  is  of  a  live  thing  or  things,  it  must  be  prety:  and  so  of  a 
dead  thing  in  the  singular  number :  but  if  it  be  of  dead  things  in  the 
plural  number,  then  it  must  be  ad  valentiam,  and  not  prety.^"  Againe 
if  it  be  of  a  dead  thing  that  goeth  by  weight  or  measure,  the  forme  is 
to  say  prety  and  not  ad  valentiam. 

If  the  endictment  be  of  taking  away  coine  which  is  not  current, 
it  shall  say  prety:  otherwise  if  it  is  of  money  current,  because  that 
carrieth  his  value  and  price  with  it.  If  it  be  quod  proditore  fecit  gros- 
sos,  vel  denarios,  it  shall  be  ad  valentiam,  and  it  shall  not  say,  20  libras 
in  denarys,  or  in  pecunia  domini  regis,  but  ad  instar  pecuniae  domini 
regis.    Sundry  other  daintie  and  nice  differences  doth  M.  Marr.  make. 

Lambard's  Eirenarcha,  496. 


REX  v.  KETTLE. 

(Chelmsford  Assizes,  1819.     3  Chit.  Cr.  Law  [4th  Ed.]  947a.) 

The  prisoner  was  indicted  for  stealing  "one  bushel  of  oats,  one  bush- 
el of  chaff,  and  one  bushel  of  beans,  of  the  goods  and  chattels  of,  A. 
B.,  then  and  there  found,"  and  the  proof  was  that  these  articles,  at 
the  time  of  the  felonious  taking,  were  mixed  together.     Bayley,  J., 

3  0  Accord:  King  v.  State,  43  Tex.  351  (1875);  Ward  v.  People,  3  Hill 
(N.  Y.)  395  (1843). 

3  1  Or  the  ownership  may  be  laid  in  the  owner,  or  in  the  bailee.  Kennedy 
y.  State,  81  Fla.  428,  12  South.  8o8  (ISi^S).  Unless  the  owner  be  the  thief, 
In  which  case  the  ownership  should  be  laid  in  the  bailee.  Adams  v.  State,  45 
N.  J.  Law,  448  (18S3). 

3  2  See  further,  25  Cyc.  96. 

3  3  "But  this  I  take  to  be  but  clerkship,  and  not  substantial."  2  Hale,  P.  C. 
183. 


102  •  THE    INDICTMENT  (Ch.  9 

held  that  the  articles  ought  to  have  been  described  as  mixed,  thus :  "A 
certain  mixture,  consisting  of  one  bushel,"  etc.,  and  he  directed  an 
acquittal  on  this  account.^* 


REX  V.  FORSYTH. 

(Court  for  Crown  Cases  Reserved,  1S14.     Russ.  &  R.  274.) 

The  prisoner  was  tried  before  Mr.  Justice  Dallas,  at  the  Lent  as- 
sizes for  the  county  of  Stafford,  in  the  year  181-i,  on  an  indictment, 
the  first  count  of  which  stated,  that  the  prisoner  *  *  *  became 
bankrupt,  and  on  2Sth  of  same  November,  upon  the  petition  of  the 
before  named  persons,  a  commission  of  bankruptcy  was  issued,  and 
that  on  30th  of  same  November,  at  Manchester,  prisoner  was  declared 
a  bankrupt,  and  notice  thereof  left  at  the  dwelling  house  of  prisoner, 
at  Burslem  aforesaid,  *  *  *  and  that  he,  devising  to  cheat  his 
creditors,  did  not  at  any  of  the  said  times,  upon  such  his  examina- 
tion, truly  disclose  and  discover  all  his  estates  and  effects,  as  was  his 
duty  so  to  do,  but,  on  the  contrary  thereof,  then  and  there  did  con- 
ceal and  kept  secret  a  bed,  six  tables,  etc.  (enumerating  many  articles), 
and  "one  hundred  other  articles  of  household  furniture,  and  a  certain 
debt  due  from  one  John  Taylor  to  the  said  prisoner  to  the  value  of 
twenty  pounds  and  upwards."  35     *     *     * 

The  following  objections  were  then  taken  to  the  indictment:    ♦    ♦    * 
Thirdly.  That  the  household  furniture,  as  well  as  the  debt  conceal- 
ed, etc.,  were  not  stated  in  the  indictment  with  sufficient  certainty,  the 
former  being,  "and  one  hundred  other  articles  of  household  furniture," 
and  the  latter,  "a  certain  debt  due  from  one  A.  B.  to  the  said  prison- 


In  Easter  term,  7th  May,  1814,  all  the  judges  met  (except  Dampier, 
J.,  who  was  absent)  and  held  the  indictment  bad,  on  the  ground  of 
the  property  concealed  not  being  all  specified,  and  no  distinct  value 
having  been  put  upon  the  articles  enumerated.     *     * 


9|c  36 


3  4  "I  doubt  the  propriety  of  that  decision  [Rex  v.  Kettle].  I  cannot  help 
thinkins;  that,  if  a  man  steal  wine  and  water,  he  may  be  charged  with  stealing 
wine.  The  above  principle  would  doubtless  hold  good,  where  the  mixture  was 
such  as  to  produce  a  chemical  change  in  the  articles."  Aldersou,  B.,  in  Keg.  v. 
Bond,  4  Cox,  C  C.  234  (1S50). 

3  6  Part  of  this  case  is  omitted. 

36  "Upon  an  indictment  for  stealing  printed  books,  as  It  has  been  observed 
by  my  Lord,  it  is  not  necessary  to  do  more  than  to  name  so  many  printed 
books."     Bayley,  J.,  in  Rex  v.  .Johnson,  3  Maule  &  S.  555  (1S15). 

"An  averment  that  the  defendant  conveyed  a  certain  parcel  of  land  in  the 
city  of  Salem,  without  any  other  terms  of  description,  is  bad  for  uncer- 
tainty. •  *  ♦  The  defendant  may  have  owned  other  parcels  of  land  in  the 
city  of  Salem,  which  he  conveved  to  the  prosecutor  on  the  day  alleged."  Bige^ 
low,  J.,  in  Commonwealth  v.  P.rown,  15  Gray  (Mass.)  190  (ISGO).  See,  also. 
State  V.  Malloy,  34  N.  J.  Law,  410  (1871). 


Ch.  9)  THE    INDICTMENT  103 

STATE  V.  BASSETT. 

(Supreme  Court  of  Louisiana,  1SS2.    34  La.  Ann.  IIOS.) 

Bermudez,  C.  J."  The  defendant  was  convicted  of  larceny  and 
sentenced  to  hard  labor. 

On  appeal  he  complains,  as  he  did  in  the  lower  court :  *  *  *  That 
he  could  not  be  convicted  of  stealing  hens,  when  the  charge  was  of 
stealing  chickens,  and  that  it  was  not  proved  that  the  chickens  were 
Cochin  China,  but  Buff  Cochin  chickens.    *     *     * 

The  district  judge  has  well  answered  all  the  objections  urged  by  the 
defendant.  He  says :  "The  description  of  the  stolen  property  is  two 
Cochin  China  chickens,  of  the  value  of,"  etc. 

In  2  Bishop's  Cr.  Pr.  §  700,  it  is  held  that  such  description  of  the 
thing  stolen  as  the  following  is  good  and  sufficient,  viz. :  "One  sheep," 
"a  horse,"  "a  certain  mare,"  "one  cow,"  "one  watch,"  "one  certain 
hog."  In  State  v.  Carter,  33  La.  Ann.  1214,  where  the  description  was 
"one  hog,"  it  was  held  to  be  good,  and  a  number  of  authorities  cited 
in  support.  See,  also.  State  v.  Everage,  33  La.  Ann.  122 ;  State  v- 
King,  31  La.  Ann.  179. 

In  State  v.  Thomas,  30  La.  Ann.  600,  the  property  was  described  as 
"one  small  hog."  It  was  urged  that  indictment  was  insufficient,  in 
not  describing  the  animal  by  any  mark,  or  by  its  color  and  sex.  So. 
in  the  case  at  bar,  it  was  urged  that  the  color,  condition  and  sex  of 
the  chickens  ought  to  have  been  alleged.  But  if  the  description,  such 
as  "one  hog,"  is  sufficient,  without  mention  of  the  color,  sex,  condi- 
tion, flesh  marks,  or  ear  marks,  as  was  held  in  State  v.  Carter,  33  La. 
Ann.  1214,  what  reason  exists  for  a  more  particular  description  when 
chickens  are  the  subject  of  larceny?  Chickens  are  designated  accord- 
ing to  sex  and  age,  as  chicks,  pullets,  cockrills,  hens  and  roosters. 
Hogs  are  also  known  as  pigs,  shoats,  barrows,  sows  "and  boars.  If 
an  indictment  charging  the  larceny  of  "one  hog,"  or  of  "one  small 
hog,"  is  sustained  by  proof  that  the  property  stolen  was  either  a  boar, 
a  barrow,  a  sow,  certainly  an  indictment  charging  the  larceny  of  a 
chicken  is  good,  and  evidence  is  admissible,  whether  the  chickens  stolen 
were  hens,  roosters  or  pullets. 

The  state  is  bound  to  allege  and  prove  every  fact  or  ingredient  nec- 
essal-y  to  constitute  the  crime  charged.  The  converse  must  be  equally 
true.  If  it  is  unnecessary  to  aver  the  color,  marks  or  sex  of  a  hog  or 
chicken  charged  to  have  been  stolen,  then  it  is  unnecessary  to  prove 
either  of  those  facts.    *    *    * 

Judgment  affirmed.^* 

8T  Part  of  this  case  is  omitted. 

3  8  See,  also,  State  v.  Stelly.  4S  La.  Ann.  1478,  21  South.  89  (1896). 

In  Rex  V.  Douglass,  1  Camp.  212  (1808),  Lord  Ellenborough  was  of  opinion 
that  where  a  statute  enumerated  several  articles,  as  haskets  and  parcels,  an 
indictment  under  the  statute  must  describe  the  article  by  its  specific,  not  its 
generic,  name.     This  doctrine  was  followed  in  Res  v.  Loom,  1  Moody,  G.  G. 


104  TUE    INDICl-MENT  (Ch.  9 

PEOPLE  V.  BOGART. 

(Supreme  Court  of  California,  1S6S.     36  Cal.  245.) 

The  indictment  chiarged  the  defendant  with  having  stolen  sundry 
gold  coins,  lawful  money  of  the  United  States,  of  the  aggregate  value 
of  three  hundred  and  fifty  dollars,  and  averred  that  the  grand  jury 
could  not  give  a  more  particular  description,  as  they  had  no  means 
of  knowledge.  It  also  charged  that  the  gold  coins  were  the  property 
of  "Wells,  Fargo  &  Co.,"  without  giving  the  names  of  the  firm,  or 
averring  that  "Wells,  Fargo  &  Co."  was  a  partnership  or  a  corpora- 
tion.   *    *    * 

Sanderson,  J.^®  The  general  rule  undoubtedly  is  that  the  stolen 
property,  if  money,  should  be  described  as  so  many  pieces  of  current 
gold  or  silver  coin,  specifying  the  species  of  coin;  but,  if  the  species 
of  coin  be  unknown  to  the  grand  jury,  they  may  so  state,  in  lieu  of 
such  specification.  In  this  respect  the  law  does  not  require  greater 
certainty  than  the  nature  of  the  case  affords.*"     *     *     * 

160  (1827),  where  It  was  held  that  an  indictment  for  stealing  sheep  wonld 
not  support  a  conviction  for  stealing  lambs,  and  in  Rex  v.  Puddifoot,  1  Moody, 
C  C.  247  (1829),  where  It  was  held  that  on  a  similar  indictment  one  could  not 
be  convicted  of  stealing  a  e-we.  These  cases,  and  similar  cases,  seem  to  be 
overruled  by  Reg.  v.  Spicer,  1  Den.  C.  C.  82  (1845). 

3  9  Part  of  this  case  is  omitted. 

40  Compare  Reg.  v.  Bond,  1  Den.  O.  C.  517  (1849).  In  many  jurisdictions 
it  is  held  to  be  unnecessary  to  state  the  species,  number,  or  denominations 
of  the  money  stolen.  Commonwealth  v.  Stebbins,  8  Gray  (Mass.)  492  (1857) ; 
State  V.  Palmer,  20  Wash.  207,  54  Pac.  1121  (1898),  by  statute. 

Averments  of  Words  and  Writings. — When  it  is  necessary  to  set  forth 
an  instrument,  or  writing,  as  in  case  of  forgery  or  threatening  letters,  it 
may  be  prefaced  by  the  words  "to  the  tenor  following,"  or  "in  these  words," 
or  "as  follows,"  or  "in  the  words  and  figures  following,"  for  though  the  setting 
forth  of  the  instrument  by  the  tenor  which  imports  an  accurate  copy  has  been 
considered  to  be  most  technical,  yet  it  has  been  holden  that  "as  follows"  is 
equivalent  to  the  words  "according  to  the  tenor  following,"  or  "in  the  words 
and  figures  following,"  and  that  if,  under  such  an  allegation,  the  prosecutor 
fail  in  proving  the  instrument  verbatim,  as  laid,  the  variance  will  be 
fatal,  and  unless  the  indictment,  by  these  or  similar  expressions,  profess  to 
set  out  a  copy  of  the  insti-ument  in  words  and  figures,  it  will  be  invalid. 
It  would  be  improper  to  state  in  these  cases,  or  in  an  indictment  for  libel, 
that  the  writing  was  "to  the  effect  following,"  or  "to  the  substance  fol- 
lowing." There  is  no  judicial  decision  that,  in  an  indictment  for  forgery,  the 
purport  and  the  tenor  should  both  be  stated.  Purport  means  the  substance 
of  an  instrument  as  it  appears  on  the  face  of  it  to  every  eye  that  reads 
it;  tenor  means  an  exact  copy  of  it.  The  words  "in  manner  and  form 
following,  that  is  to  say."  do  not  profess  to  give  more  than  the  substance, 
and  are  proper  in  an  indictment  for  perjury;  but  the  word  "aforesaid"  binds 
the  party  to  an  exact  recital.  In  forgery  the  indictment  may  run,  that 
the  prisoner  forged  a  jiaper  writing,  stating  what  it  was,  to  the  tenor  and 
effect  following,  etc.  An  exact  copy  of  the  instrument,  in  words  and  figures, 
must  then  be  set  forth,  to  enable  the  court  to  see  that  it  is  one  of  those 
instruments  the  false  making  of  which  the  law  considers  as  forgery,  and 
if  the  instrument  be  in  a  foreign  language,  it  must  be  translated ;  and  the 
same  rule  applies  to  indictments  for  threatening  letters.  But  in  setting  forth 
even  the  tenor  of  an  instrument  a  mere  variance  of  a  letter  will  not  vitiate, 
provided  the  meaning  be  not  altered  by  changing  the  word  misspelt  into  an- 


Ch.  9)  THE    INDICTMENT  105 

In  another  respect,  however,  the  indictment  is  ba3.  The  ownership 
of  the  money  is  laid  in  "Wells,  Fargo  &  Co.,"  without  any  specifica- 
tion of  the  copartners,  if  it  is  a  partnership,  or  any  allegation  that 
"Wells,  Fargo  &  Co."  is  a.  corporation,  if  such  is  the  case.  At  com- 
mon law,  if  the  stolen  goods  are  the  property  of  partners,  or  joint 
owners,  the  names  of  all  the  partners,  or  joint  owners,  must  be  stated. 
Commonwealth  v.  Trimmer,  1  Mass.  476 ;  Hogg  v.  State,  3  Blackf . 
(Ind.)  o26;  State  v.  Owens,  10  Rich.  Law  (S.  C.)  169.  To  avoid 
this  difficulty,  the  statute  of  7  Geo.  IV,  c.  64,  §  14,  was  passed,  which 
provided  that  where  the  stolen  goods  were  the  property  of  partners, 
joint  tenants,  parceners,  or  tenants  in  common,  it  should  be  sufficient 
to  charge  the  property  in  one  of  them  by  name,  and  another  or  others, 
according  to  the  fact;  t)ut  we  have  no  such  statute  in  this  state. 
Hence,  if  "Wells,  Fargo  &  Co."  is  the  name  or  style  of  a  firm  or  co- 
partnership, the  names  of  the  several  persons  who  compose  the  firm 
should  have  been  stated.  If,  however,  "Wells,  Fargo  &  Co."  is  the 
name  of  a  corporation,  the  indictment  would  have  been  good,  had  it 
contained  an  allegation  to  that  effect.  2  Russ.  on  Crimes,  99 ;  People 
V.  Schwartz,  32  Cal.  160.     *     *     * 

Judgment  reversed,  and  cause  remanded  for  further  proceedings, 
and  remittitur  directed  to  issue  forthwith. 

ether  of  a  different  meaning.  *  •  •  When  the  purport  may  be  adoptecl,  in- 
stead of  tenor,  it  is  not  necessary  to  state  the  matter  with  such  verbal  ac- 
curacy, as  the  former  term  merely  signifies  substance,  while  the  latter  im- 
ports an  exact  copy.  But  if  the  paper  forged  does  not  on  the  face  of  it  appear 
to  be  that  which  the  indictment  states  it  purports  to  be,  the  proceedings  will 
be  invalid.  In  stating  a  libel  or  perjury  it  is  necessary  only  to  set  forth  so 
much  of  the  matter  as  renders  the  offence  complete;  provided  that  the  part 
omitted  does  not  in  any  way  alter  the  sense  of  that  which  is  set  out.  In 
stating  a  libel,  with  the  omission  of  a  reference,  from  which  on  reading  the 
libel  it  appeared  to  be  a  quotation,  the  variance  was  held  fatal.  In  stating  a 
libel  or  perjury,  where  different  parts  of  the  written  instrument,  not  following 
each  other,  are  set  forth  in  the  same  count,  they  should  not  be  professedly 
stated  continuously,  and  as  immediately  following  each  other;  for  if  they 
be  so  stated,  and  a  part  should  not  be  proved,  the  whole  count  will  fail.  The 
proper  course  is  to  allege  that  "in  one  part  of  which  affidavit  or  libel  there 
were  and  are  the  words  following,"  etc.,  and  in  another  part  thereof  the 
words  following,  etc.     ♦    «     *    i  Chitty,  Cr.  Law,  233. 

The  statute  of  23  Geo.  II,  c.  11,  made  it  unnecessary  In  Indictments  for  per- 
jury to  set  out  the  false  statement  according  to  its  tenor.  See  Bradlaugh  v. 
Re"-  3  Q.  B.  D.  617  (1887).  Similar  statutes  have  been  enacted  in  the  United 
Statues.  U.  S.  v.  Walsh  (C.  C.)  22  Fed.  644  (1884)  ;  State  v.  Groves,  44  N.  C 
402  (ISoS).  A  common  statute  in  the  United  States  likewise  abolishes  the  com- 
mon-law rule  requiring,  in  indictments  for  forgery,  that  the  writing  be  set 
out  verbatim.  State  v.  Childers,  82  Or.  119.  49  Pac.  801  (1807);  Bostick  v. 
State.  84  Ala.  2GQ  (1859) ;    State  v.  Pullens.  81  Mo.  887  (1884). 


106  THE    INDICTMENT  (Ch.  9 

V.  Averment  op  the  Degree  oe  Defendant's  Connection  with 

THE  Oeeense 

SANSON  V.  OSSLEY. 
(Court  of  King's  Bench,  1686-87.    3  Mod.  121.) 

An  appeal  of  murder  was  tried  in  Cambridgeshire  against  three  per- 
sons, and  the  count  was,  that  Ossley  assaulted  the  husband  of  the  ap- 
pellant and  wounded  him,  in  Huntingdonshire,  of  which  wound  he 
languished  and  died  in  Cambridgeshire,  and  that  Lippon  and  Martin 
were  assisting. 

The  jury  found  a  special  verdict,  in  which  the  fact  appeared  to  be, 
that  Lippon  gave  the  wound,  and  that  Martin  and  Ossley  were  assist- 
ing. 

The  first  exception  to  this  verdict  was :  That  the  count  and  the  mat- 
ter therein  alleged  must  be  certain,  and  so  hkewise  must  the  verdict, 
otherwise  no  judgment  can  be  given;  but  here  the  verdict  finding  that 
another  person  gave  the  stroke,  and  not  that  person  against  whom  the 
appellant   had   declared,    it   is   directly   against   her   own   showing.*^ 

*         V        « 

The  Court  answered  to  the  first  exception,  that  it  was  of  no  force, 
and  that  the  same  objection  may  be  made  to  an  indictment,  where  in 
an  indictment  if  one  gives  the  stroke  and  another  is  abetting,  they  are 
both  principally  and  equally  guilty ;  and  an  indictment  ought  to  be  as 
■certain  as  a  count  in  an  appeal.     *     *     * 


hatchett  v.  commonwealth. 

(Court  of  Appeals  of  Virginia,  1882.     75  Va.  925.) 

Anderson,  J.,  delivered  the  opinion  of  the  court.* ^ 

The  prisoner,  Littleton  Hatchett,  was  indicted  jointly  with  Oliver 
Hatchett  and  Henry  Carroll ;  Oliver  Hatchett  for  the  willful  and  ma- 
licious murder  of  Moses  Young  by  poison,  Henry  Carroll  and  Little- 
ton Hatchett,  the  prisoner,  as  accessories  before  the  fact.  It  is  stated 
in  the  petition  that  Carroll  has  been  tried  and  acquitted.  Oliver,  who 
is  charged  as  principal,  had  not  been  tried,  but  was  still  under  arrest. 

The  court  is  of  opinion  that  the  evidence  is  insufficient  to  connect 
Oliver  Hatchett,  who  is  charged  as  principal  with  the  perpetration  of 
this  crime,  to  warrant  the  conviction  of  the  prisoner  as  an  accessory 
before  the  fact. 

At  common  law  the  accessory  could  not  be  tried  until  the  principal 
had  been  convicted  by  the  verdict  of  a  jury  (or  outlawed),  and  thf 

*i  Part  of  this  case  is  omitted. 


Ch.  9)  THE    INDICTMENT  107 

only  evidence  which  was  admissible  to  prove  the  principal's  guilt,  was 
the  record  of  his  conviction  by  tlie  verdict  of  a  jury  in  a  court  of  com- 
petent jurisdiction.  In  England,  and  some  of  the  American  states,  the 
common-law  rule  has  been  subverted  by  statute,  which  provides  that 
an  accessory  before  the  fact  to  a  felony  "may  be  indicted,  tried,  con- 
victed and  punished,  in  all  respects  as  if  he  were  a  principal  felon." 
Our  statute  does  not  go  so  far.  It  provides  (Acts  of  Assembly  1877, 
p.  312,  c.  10,  §  7)  that  "in  the  case  of  every  felon,  every  principal  in 
the  second  degree,  and  every  accessory  before  the  fact,  shall  be  pun- 
ished as  if  he  were  the  principal  in  the  first  degree" ;  and  by  section 
9,  an  accessory,  either  before  or  after  the  fact,  may,  whether  the  prin- 
cipal felon  be  convicted  or  not,  or  be  amenable  to  justice  or  not,  be  in- 
dicted, convicted  and  punished,  and  an  accessory  before  the  fact  may 
be  indicted  either  with  the  principal  or  separately.  These  provisions 
are  the  same  in  the  Code.  It  does  not  provide,  as  the  Pennsylvania 
statute  does,  which  is  substantially  a  copy  of  the  English  statute,  that 
he  is  to  be  indicted,  tried  and  convicted  in  all  respects  as  if  he  were  the 
principal  in  the  first  degree. 

It  is  implied  by  the  Virginia  statute  that  he  must  be  indicted,  tried 
and  convicted  as  an  accessory  before  the  fact,  though  he  shall  be  pun- 
ished as  if  he  were  the  principal  in  the  first  degree.  He  may  be  in- 
dicted, convicted  and  punished,  whether  accessory  before  or  after  the 
fact,  by  express  terms  of  the  statute;  but  it  is  as  accessory,  whether 
the  principal  felon  has  been  convicted  or  not,  and  the  accessory  before 
the  fact  may  be  indicted  either  with  the  principal  or  separately,  of 
course,  as  accessory.  He  could  only  be  indicted  under  this  statute  as 
accessory.  It  gives  no  authority  to  indict  him  as  principal.  Accord- 
ingly in  Thornton's  Case,  24  Grat.  669,  670,  it  was  held  by  this  court 
that  "our  statute  has  not  gone  far  enough  to  make  an  accessory  before 
the  fact  to  a  felony  liable  to  be  convicted  on  an  indictment  against  him 
as  principal."  Upon  this  view  of  the  statute  the  conclusion  is  obvious 
that  an  accessory  to  a  felony  cannot  be  prosecuted  for  a  substantive 
offense,  but  only  as  an  accessory  to  the  crime  perpetrated  by  the  prin- 
cipal felon,  and  in  order  to  his  conviction,  although  it  is  not  necessary 
now  to  show  that  the  principal  felon  has  been  convicted,  it  is  necessary 
to  show  that  the  substantive  offense,  to  which  he  is  charged  as  having 
been  accessory,  has  been  committed  by  the  principal  felon. 

The  court  is  of  opinion  that  the  evidence  is  clearly  insufficient  to 
convict  Oliver  Hatchett,  as  principal,  with  administering  the  poi- 
son.   *    *    * 

The  court  is  of  opinion  that  the  evidence  is  plainly  insufficient  to 
convict  Oliver  Hatchett,  who  is  indicted  as  principal  with  the  killing-, 
or  to  show  that  he  was  guilty  of  administering  the  poison.     ♦     *     * 

Judgment  reversed.*^ 

42  By  statute  In  England  (11  &  12  Vict  c.  46),  and  In  many  of  our  states,  tbe 
distinction  between  principals  and  accessories  has  been  abolished.     Some  of 


lOS  THE    INDICTMENT  (Ch.  9 

REX  V.  THOMPSON. 

(Court  of  King's  Bench,  1676.    2  Lev.  208.) 

Error  on  a  judgment  on  an  indictment  alleging  that  the  defendant 
knowingly  received  and  harbored  divers  thieves  to  the  jury  unknown, 
that  had  stolen  divers  goods,  and  committed  divers  burglaries.  Ex> 
ception.  1.  That  this  is  too  general,  and  not  more  than  alleging  that 
one  is  a  common  receiver  of  felons ;  and  cited  Co.  3  Inst.  12,  13,  in- 
dictment for  using  divers  diabolical  arts.  Rolls,  Indictment,  79,  com- 
mon oppressor  of  the  neighborhood.  These  are  bad,  but  common  bar- 
retor  is  good  because  that  term  is  well  known.  2.  Scienter  recepit,  is 
not  good,  but  it  ought  to  be  that  he  knowing  them  to  be  thieves,  re- 
ceived them,  for  he  could  know  the  persons  and  not  know  that  they 
were  thieves.  1  Cro.  Bolton  v.  Banks,  &  Ibid.  Kirmion  v.  Wells.  3. 
It  ought  to  be  that  he  feloniously  received  felonice  recepit,  for  receipt 
of  felons  and  harboring  them  knowing  it  is  felony. 

But  it  was  not  allowed,  for,  by  the  count  1,  perchance  the  felons 
could  be  particularly  known  no  more  than  the  felonies  and  burglaries. 
And  a  house  that  harbors  felons  is  a  common  nuisance  as  is  a  common 
bawdy  house.  And  as  to  2,  Jones  said  that  scienter  had  been  lately 
ruled  good  in  one  Sallie's  Case.  And  as  to  3,  the  king  may  if  he  please 
waive  the  felony  and  indict  for  trespass.  Upon  which  the  judgment 
was  affirmed.^* 


SECTION  2.— JOINDER  OF  DEFENDANTS 


ANONYMOUS. 

(Upper  Bench,  1G49.    Style,  157.) 

The  court  was  moved  to  quash  divers  Endictments  against  the  In- 
habitants of  the  Parishes  of  Shoreditch  and  Hackney  in  Middlesex, 
for  not  repairing  the  High  ways.    The  exception  taken  was,  that  the 

these  statutes  specifically  provide  that  the  accessory  may  he  Indicted  as  a 
principal.  See  Camphell  v.  Commonwealth,  84  Pa.  1S7  (1S77) ;  People  r. 
Davidson,  5  Cal.  133  (1855). 

43  "It  devolves  on  the  commonwealth  to  show  the  suilt  of  the  principal 
felon  before  a  conviction  of  the  accessory  can  be  had ;  therefore  It  is  necessary 
that  an  Indictment  against  an  accessory  shall  contain  such  allegation  as  to  tlie 
commission  of  the  crime  and  the  guilt  of  the  principal  as  would  make  it  a 
good  indictment  against  the  principal ;  and  these  statements  are  Indispensable 
to  the  validity  of  an  indictment,  w'hether  joint  or  several."  Pryor,  J.,  in 
Tully  V.  Commonwealth,  11  Bush  (Ky.)  158  (1S74). 

"It  is  In  no  case  necessary  to  set  forth  the  means  by  which  the  accessory 
before  the  fact  incited  the  principal  to  commit  the  felony,  or  the  acros^pory 
after  received,  concealed  or  comforted  him."  Fogler,  J.,  in  State  t.  Neddo,  02 
Me,  77,  42  Atl.  255  (1S9S). 


Ch.  9)  THE    INDICTMENT  109 

Parishes  are  jointly  endicted,  whereas  their  offences  are  several,  and 
also  not  equal,  and  yet  both  fined  alike.  The  Court  quashed  the  En- 
dictment,  and  discharged  the  issues  which  were  not  retorned,  but  not 
those  that  were  retorned. 


REX  V.  PHILIPS. 
(Court  of  King's  Beuch,  1731.     2  Strange,  921.) 

Six  persons  were  indicted  in  one  indictment  for  perjury,  and  four 
of  them  pleading  were  convicted.  It  was  then  moved,  in  arrest  of 
judgment,  that  crimes  (especially  perjury)  were  in  their  nature  several, 
and  two  cannot  be  indicted  together.  And  Palm.  535.  6  Mod.  210. 
2  Roh.  Abr.  81,  pi.  6,  7.  Salk.  3S2.  Pas.  11  Geo.  I.  Rex  v.  Weston 
et  al.,  ante  623.  Trin.  4  Geo.  II.  Rex.  v.  Clendon,  ante  870.  1  Keb. 
585,  612,  635,  were  cited. 

E  contra  were  cited  Salk.  382,  in  extortion,  Trin.  10  Anne,  Regina 
V.  Marshal,  against  two  for  receiving  stolen  goods.  1  Ven.  302.  3 
Keb.  700,  for  maintenance.  3  Roll.  Rep.  345.  Palm.  3G7..  Salk.  384, 
against  husband  and  wife  for  keeping  a  disorderly  house,  and  Regina 
V.  Dixon  et  ux.  Sti.  312.  Cro.  El.  230.  3  Leon.  230,  where  this  ex- 
ception was  not  taken  in  perjury.    Cro.  Car.  380. 

Sed  Per  Curiam.  There  may  be  great  inconveniences  if  this  is  al- 
lowed; one  may  be  desirous  to  have  a  certiorari,  and  the  other  not; 
the  jury  on  the  trial  of  all  may  apply  evidence  to  all,  that  is  but  evi- 
dence against  one.  The  cases  cited  are  all  of  that  which  may  be  joint, 
as  extortion,  maintenance,  &c.  but  perjury  is  a  separate  act  in  each: 
and  Trin.  6  Ann.  Regina  v.  Hodson  et  al.,  two  were  indicted  for  being 
scolds,  and  comnared  to  barretrv,  and  held  not  to  lie.  The  judgment 
was  arrested.    Strange  pro  def.** 


CUSTODES  v.  TAWNY  AND  NORWOOD. 

(Upper  Bench,  1651.     Style,  312.) 

Tawny  and  Norwood  were  jointly  endicted  for  blasphemous  words 
severally  spoken  by  them,  upon  the  late  statute  made  against  blas- 
phemy, and  were  convicted,  the  parties  being  removed  hither  by  habeas 
corpus.  It  was  urged  that  the  endictment  was  not  good,  because  it  was 
joint,  whereas  the  words  being  spoken  by  them  severally,  they  ought 
to  have  been  endicted  severally ;  for  the  words  spoken  by  one  of  them 
cannot  be  said  to  be  the  words  of  the  other.  But  Roll,  Chief  Justice, 
said:   The  endictment  was  good  enough  though  it  be  joint,  as  it  is  in 

44  Accord:  Uttering  profane  language.  State  v.  Lancaster.  36  Ark.  55 
(ISSO).    Public  drunkenness.     State  v.  Deaton,  92  N.  C.  7SS  (1SS5). 


110  THE    INDICTMENT  (Ch.  9 

the  case  of  several  perjuries,  and  several  batteries,  where  a  joint  en- 
dictment  doth  lie,  although  it  do  not  for  several  felonies,  and  here  the 
endictment  is  upon  one  and  the  same  statute,  and  for  one  and  the  same 
oiience,  and  therefore  the  judgment  given  upon  it  is  also  good,  and  it 
shall  be  taken  reddendo  singula  singulis  (i.  e.)  the  words  to  each  of 
them  as  they  spoke  them.^^ 


REX  V.  SUDBURY. 
(Court  of  King's  Bench,  1699.    12  Mod.  262.) 

The  defendants  were  indicted,  for  that  they  riotose  et  routose  as- 
semblaverunt,  and  so  assembled  committed  a  battery  on  ]\Iary  Russell. 
Two  of  them  were  found  guilty,  and  all  the  others  were  acquitted; 
and  judgment  was  arrested,  for  two  cannot  commit  a  riot. 

But  by  Holt,  Chief  Justice.  If  the  indictment  had  been,  that  the 
defendants,  with  divers  other  disturbers  of  the  peace,  had  committed 
this  riot,  and  the  verdict  had  been,  in  this  case  the  king  might  have 
judgment.*^ 


SECTION  3.— JOINDER  OF  OFFENSES 


It  is  frequently  advisable,  when  the  crime  is  of  a  complicated  na- 
ture, or  it  is  uncertain  whether  the  evidence  will  support  the  higher 
and  more  criminal  part  of  the  charge,  or  the  charge  precisely  as  laid, 
to  insert  two  or  more  counts  in  the  indictment.  *  *  *  Every  sep- 
arate count  should  charge  the  defendant  as  if  he  had  committed  a 
distinct  offense,  because  it  is  upon  the  principle  of  the  joinder  of  of- 
fenses, that  the  joinder  of  counts  is  admitted.  3  T.  R.  106,  107.  And 
to  the  supposed  second  or  third  offense  in  each  count  should  be  pre- 
fixed a  statement  that  the  jury  super  sacramentum  suum  ulterius  pras- 
sentant.  Holt,  6S7;  4  St.  Tr.  686;  6  St.  Tr.  App.  56;  2  Salk.  633. 
Nor  will  the  defect  of  some  of  the  counts  affect  the  validity  of  the 
remainder,  for  judgment  may  be  given  against  the  defendant  upori 
those  which  are  valid. 

Chitty,  Criminal  Law,  248. 

<B  Accord:  Singing  libelous  songs.  Rex  v.  Benfield.  2  Burr.  9S0  (1760). 
Fnlse  pretense.  Young  v.  Rex,  3  T.  R.  98  (17S9).  Disturbance  of  worship. 
Ball  V.  State,  67  Miss.  3oS,  7  South.  353  (1889). 

te  See,  also,  State  v  Fox,  15  VL  22  (1843);  State  v.  Davis,  2  Sueed  (Tenn.) 
273  (1S54). 


Ch.  9)  THE    INDICTMENT  111' 

YOUNG  V.  REX. 

(Court  of  King's  Bench,  17S9.     3  Term  R.  98.) 

An  indictment  was  preferred  at  the  sessions  at  Bristol  against  the 
defendants  on  the  30  Geo.  II,  c.  21,  for  obtaining  money  by  false  pre- 
tenses. *  *  *  The  defendants  were  found  guilty,  and  sentenced 
to  be  transported  for  seven  years.     *     *     * 

Fielding  made  five  objections  to  the  indictment.*^     *     *  .  *. 

The  fourth  objection  was,  that  the  second  count  in  the  indictment 
states  a  distinct  offense,  not  arising  out  of,  or  connected  with,  the 
charge  in  the  first  count.  The  charge  in  the  first  count  was  that  the 
bet  was  made  with  a  colonel  at  Bath ;  in  the  second,  that  it  was  with 
Osmer,  another  of  the  defendants.  This  therefore  should  have  been 
the  subject  of  another  indictment.  It  is  not  like  the  ordinary  case  of 
an  indictment  consisting  of  several  counts,  where  they  are  only  modi- 
fications of  the  same  offense;  for  here  is  no  mark  of  the  entirety  of 
the  offense.  These  offenses  are  distinct  in  their  nature,  and  lead  to 
distinct  punishments.  But  if  a  prisoner  be  indicted  for  two  separate 
offenses,  he  may  be  confounded  in  his  defense,  and  the  minds  of  the 
jury  distracted.  In  R.  v.  Roberts,  Garth.  226,  which  was  an  informa- 
tion ag&inst  the  defendant,  who  was  a  ferryman,  for  receiving  divers 
sums  of  money  from  different  passengers,  after  a  verdict  of  guilty, 
the  judgment  was  arrested;  and  Holt,  C.  J.,  said:  "In  every  such  in- 
formation, a  single  offense  ought  to  be  laid ;  they  ought  not  to  be  ac- 
cumulated under  a  general  charge,  because  each  oft'ense  requires  a 
separate  punishment."  This  count,  then,  charging  a  distinct  offense, 
cannot  be  united  with  the  first;  neither  can  it  be  rejected  as  surplus- 
age ;  but  it  vitiates  the  whole  indictment.     *     *     * 

BuLivER,  J.  *  *  *  As  to  the  remaining  objection,  that  is 
founded  on  a  point  which  once  embarrassed  me  a  great  deal.  Some 
years  have  elapsed  since  I  looked  into  it,  but  I  believe  I  can  state  pretty 
accurately  how  it  stands.  In  misdemeanors,  the  case  in  Burrows, 
shows  that  it  is  no  objection  to  an  indictment  that  it  contains  several 
charges.  The  case  of  felonies  admits  of  a  different  consideration ; 
but  even  in  such  cases  it  is  no  objection  in  this  stage  of  the  prosecu- 
tion. On  the  face  of  an  indictment  every  count  imports  to  be  for  a 
different  offense,  and  is  charged  as  at  different  times.  And  it  does  not 
appear  on  the  record  whether  the  offenses  are  or  are  not  distinct.  But 
if  it  appear  before  the  defendant  has  pleaded,  or  the  jury  are  charged, 
that  he  is  to  be  tried  for  separate  offenses,  it  has  been  the  practice  of 
the  judges  to  quash  the  indictment,  lest  it  should  confound  the  pris- 
oner in  his  defense,  or  prejudice  him  in  his  challenge  of  the  jury;  for 
he  might  object  to  a  juryman's  trying  one  of  the  offenses,  though  he 
might  have  no  reason  to  do  so  in  the  other.    But  these  are  only  mat- 

*T  Part  of  this  case  is  omitted. 


112  THE    INDICTMENT  (Ch.  9 

ters  of  prudence  and  discretion.  If  the  judge,  who  tries  the  prisoner, 
does  not  discover  it  in  time,  I  think  he  may  put  the  prosecutor  to  make 
his  election  on  which  charge  he  will  proceed.  I  did  it  at  the  last  ses- 
sions at  the  Old  Bailey,  and  hope  that,  in  exercising  that  discretion,  I 
did  not  infringe  on  any  rule  of  law  or  justice.  But  if  the  case  has 
gone  to  the  length  of  a  verdict,  it  is  no  objection  in  arrest  of  judg- 
ment. If  it  were,  it  would  overturn  every  indictment  which  contains 
several  counts.  So  where  the  evidence  affects  several  prisoners  dif- 
ferently, I  have  as  was  done  by  Mr.  Justice  Yates  at  Hereford,  se- 
lected the  evidence  as  applicable  to  each,  and  left  their  cases  separately 
to  the  jury.  And  in  a  case  which  happened  before  me  on  the  last 
Spring  assizes  at  Exeter,  where  two  prisoners  were  indicted  for  mur- 
der, and  evidence  given  which  pressed  very  hard  on  one  prisoner,  but 
was  not  admissible  against  the  other,  I  thought  it  the  soundest  way  of 
administering  justice  to  sum  up  the  evidence  and  take  the  verdict 
against  each  separately.  But  all  these  are  mere  matters  of  discretion 
only,  which  judges  exercise  in  order  to  give  a  prisoner  a  fair  trial; 
for  Vv'hen  a  verdict  is  given,  they  are  not  the  subject  of  any  objection 
to  the  record. 

Judgment  affirmed.** 


SECTION  4.— AMENDMENTS 


ODINGTON  V.  DARBY. 

(Court  of  King's  Bench,  1612.     Bulst.  35.) 

YeIvVERTOn,  Justice.**  Two  years  since,  two  were  indicted  before 
me  at  the  assizes  for  felony,  in  case  of  life,  and  found  guilty,  and  this 
indictment  was  in  the  singular  number;  and  this  appearing  so  unto 
me,  I  doubted  whether  the  indictment  was  good  or  not,  and  so  for  this 
cause  I  made  stay  thereof ;  this  afterwards  I  moved  at  the  table  to  the 
judges,  eight  or  nine  of  them  being  present,  to  have  their  opinions 

<8  In  some  states  stjitutes  forbid  the  joinder  of  different  offenses  in  the 
same  indictment.  See  People  v.  De  Coursey,  61  Cal.  134  (1SS2) ;  State  v.  Mor- 
ris, 45  Arlj.  62  (1S85). 

"The  English  rule  against  the  joinder  of  a  felony  and  a  misdemeanor  In  the 
same  indictment  has  been  greatly  modified  by  modem  decisions.  It  would  be 
going  too  far  to  say  now  that  it  exists  in  any  case,  except  it  is  where  the 
offenses  are  repugnant  in  their  nature  and  legal  Incidents,  and  the  trial  and 
judgment  so  incongruous  as  to  tend  to  deprive  the  defendant  of  some  legal 
advantage.  Rex  v.  Ferguson,  29  Eng.  Law  &  Eq.  536 ;  Burk  v.  State.  2  Har. 
&  J.  (Md.)  426;  Harman  v.  Commonwealth,  12  Serg.  &  R.  69;  State  v. 
Hooker,  17  Vt.  C58 ;  State  v.  Boise,  1  McM.  190 ;  Rex  v.  Galloway,  1  Moo.  C. 
C.  234 ;  Whart  Am.  C.  L.  §  423."  Agnew,  J.,  ia  Henwood  v.  Commonwealth, 
62  Pa.  424  (1866).     See,  further,  post,  c.  15. 

40  Part  of  this  case  is  omitted. 


Ch.  9)  THE    INDICTMENT  11:^ 

herein,  and  by  all  of  them  clearly  the  indictment  was  good,  this  not- 
withstanding, and  well  amendable,  and  so  the  same  was  accordingly 
amended,  and  the  parties  afterwards  were  hanged  for  the  felony. 


ANONYMOUS. 
(Upper   Bench,    1654,      Style,   433.) 

Darcy  moved  that  an  endictment  of  Michaelmas  term  last  might  be 
amended  in  the  caption.  But  Roll,  Chief  Justice,  answered:  It  can- 
not be  if  it  be  of  the  last  term,  but  had  it  been  an  endictment  of  this 
term  it  might  have  been  amended. 


ANONYMOUS. 
(Upper  Bench,  1651.     Style,  321.) 

Letchmore  moved  the  court  that  the  word  publicae  might  be  put  into 
an  indictment  which  was  removed  hither  by  certiorari.  But  The 
Court  answered  it  could  not  be;  but  because  the  indictment  was  of 
another  term,  the  clerk  of  the  peace  was  fined  at  ilO.  for  his  careless- 
ness, and  grosse  oversight.^" 

s*^  Accord:  As  to  material  allegations.  State  v.  McCarthy.  17  R.  I.  370.  22 
Atl.  282  (1891) ;  State  v.  Chamberlain,  6  Nev.  257  (1871) ;  People  v.  Trank, 
88  App.  Div.  294,  85  N.  Y.  Supp.  55  (1903).  It  is  held  in  some  states  that  the 
court  may  amend  the  indictment  in  matters  of  form  without  the  consent  of  the 
gi-and  jury  and  without  an  enabling  statute.  Hawthorn  v.  State,  56  Md.  530 
(18S1).  Contra:  State  v.  Squire,  10  N.  H.  558  (1810).  Statutes  in  some  states 
permit  amendments  in  certain  particulars.  State  v.  Corbett,  12  R.  I.  288 
(1879) ;  Rosenberger  v.  Commonwealth,  118  Pa.  77,  11  Atl.  782  (1888) ;  Shiflett 
V.  Commonwealth,  90  Va.  386,  18  S.  E.  838  (1894) ;  Commonwealth  v.  Holley, 
3  Grav  (Mass.)  458  (1855).  See,  also,  Reynolds  v.  State,  92  Ala.  44,  9  South. 
398  (1890). 

"The  fundamental  question  here  Is  'whether  an  information  may  be  amended, 
at  common  law,  at  the  desire  of  the  crown,  after  plea  pleaded.'  *  •  ♦  Why 
should  it  not  be  amended?  •  *  ♦  There  is  a  great  difference  between 
amending  indictments  and  amending  informations.  Indictments  are  found 
upon  the  oaths  of  a  jury,  and  ought  only  to  be  amended  by  themselves ;  but 
informations  are  as  declarations  in  the  king's  suit.  An  officer  of  the  crown  has 
the  right  of  framing  them  originally,  and  may,  with  leave,  amend,  in  like  man- 
ner as  any  plaintiff  may  do.  If  the  amendment  can  give  occasion  to  a  new 
defense,  the  defendant  has  leave  to  charge  [change]  his  plea ;  if  it  can  make 
no  alteration  as  to  the  defense,  he  don't  want  it"  Lord  Mansfield,  in  Rex 
T.  Wilkes,  4  Burr.  2568,  2569  (1770^ 
Mik.Ce.Pb.(Abridged  Ed.) — 8 


114  THE    INDICTMENT  (Ch.  9 

PEOPLE  V.  RODLEY. 

(Supreme  Court  of  Califoruia,  1900.     131  Cal.  240,  63  Pac.  351.) 

Gray,  C^^  The  defendant  was  convicted  of  perjury,  and  sentenced 
to  imprisonment  in  the  state  prison  for  the  term  of  12  years.  He  ap- 
peals from  the  judgment  and  from  an  order  denying  his  motion  for  a 
new  trial.     *     *     * 

It  appears  that  the  grand  jury  made  a  partial  report,  and  presented 
a  true  bill  against  defendant  for  perjury  on  December  15,  1899,  and 
the  clerk  was  directed  by  the  court  to  file  the  same,  and  issue  a  bench 
warrant  thereon  for  the  arrest  of  defendant ;  and  his  bail  was  fixed  at 
the  sum  of  $5,000.  The  jury  then  retired  for  further  deliberation. 
At  3  o'clock  p.  m.  of  the  same  day  the  grand  jury  returned  into  court, 
and,  after  being  called,  the  court  stated  and  the  jury  responded  as 
follows:  "The  indictment  which  was  presented  this  forenoon  in  the 
case  of  The  People  of  the  State  of  California  v.  J.  Ellis  Rodley,  De- 
fendant, was  resubmitted  by  the  court  to  the  grand  jury  from  the  dis- 
trict attorney  to  correct  an  error  that  appeared  upon  the  face  of  the 
indictment,  in  this:  that  it  appeared  from  the  indictment  presented 
that  the  matter  before  the  court  at  the  time  that  J.  Ellis  Rodley  was 
sworn  was  a  petition  for  letters  testamentary  in  the  estate  of  Alfred 
Fuller,  deceased,  whereas  the  fact  was,  and  it  is  in  the  knowleJge  of 
the  court,  that  the^petition  called  for  letters  of  administration  with  the 
will  annexed.  O.  Have  you  now,  Mr.  Foreman,  the  indictment  cor- 
rected in  that  respect?  A.  Yes.  Q.  Has  it  been  submitted  and  voted 
upon  after  correction?  A.  Yes.  Q.  And  it  is  now  returned  to  this 
court  as  the  correct  indictment?    A.  Yes." 

The  clerk  was  thereupon  directed  to  file  the  indictment,  and  that 
the  record  show  that  it  had  been  resubmitted.  A  bench  warrant  was 
ordered  to  issue  for  the  arrest  of  said  J.  Ellis  Rodley,  with  bail  fixed 
at  $5,000.  It  was  upon  the  indictment  as  amended  that  the  defendant 
was  arraigned,  pleaded  not  guilty,  and  was  thereafter  tried.  He  was 
not  arraigned  on  the  indictment  prior  to  its  amendment.  It  appears 
from  the  foregoing  that  there  must  have  been  a  variance  between  the 
indictment  as  originally  presented  to  the  court  and  the  evidence  upon 
which  the  indictment  was  found. 

There  is  nothing  in  the  law  that  will  prevent  the  correction  of  a 
mere  mistake  like  this,  the  result,  no  doubt,  of  an  inadvertence.  The 
defendant  is  injured  in  no  way  by  the  correction.  "There  is  no  doubt 
that,  with  leave  of  the  court,  an  indictment  may  be  amended  by  the 
grand  jury  at  any  time  before  the  prisoner  has  pleaded,  and  before 
they  are  discharged."  Thomp.  &  M.  Jur.  p.  701;  Lawless  v.  State, 
4  Lea  (Tcnn.)  173;  State  v.  Creight,  1  Brev.  (S.  C.)  1C9,  2  Am.  Dec. 

61  Part  of  tliis  case  Is  omitted. 


Ch.9) 


THE    INDICTMENT 


115 


656.  In  the  case  of  Terrill  v.  Superior  Court,  127  Cal.  XVIII,  60  Pac. 
38,  the  question  for  determination  was  whether  the  court,  after  de- 
murrer sustained  to  the  indictment,  could  resubmit  the  case  to  the 
same  grand  jury  that  had  found  the  first  indictment.  It  was  held  that 
this  could  not  be  done  under  the  Code  provision  cited  therein ;  but  the 
judge  who  delivered  the  opinion  of  the  court  in  the  course  thereof  re- 
marked: "Perhaps,  before  the  defendant  has  been  arraigned,  the  in- 
dictment could  be  withdrawn,  and  by  leave  of  the  court  sent  back  to 
the  jury  for  amendment."  This  is  what  seems  to  have  been  done  in 
the  present  case,  and  we  can  see  nothing  in  it  prejudicial  to  any 
right  of  defendant,  and  nothing  of  which  he  can  be  heard  to  com- 
plain.   *    *    * 

Per  Curiam.     For  the  reasons  given  in  the  foregoing  opinion,  the 
judgment  and  order  are  affirmed. 


116  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

CHAPTER  X 

ARRAIGNMENT,  PLEAS,  AND  MOTIONS 


SECTION  1.— ARRAIGNMENT  AND   PEEAS   IN   GENERAi; 


When  the  offender  in  treason  or  felony  comes  into  court,  or  is 
brought  in  by  process,  sometimes  of  capias,  and  sometimes  of  habeas 
corpus  directed  to  the  gaoler  of  another  prison,  the  first  thing  that  fol- 
lows thereupon,  is  his  arraignment.     *     *     * 

Arraignment,  therefore,  is  nothing  else  but  the  calling  of  the  offen- 
der to  the  bar  of  the  court  to  answer  the  matter  charged  upon  him  by 
indictment  or  appeal.     *     *     * 

The  arraignment  of  a  prisoner,  therefore,  consists  of  these  parts: 

1.  The  calling  the  prisoner  to  the  bar  by  his  name,  commanding  him 
to  hold  up  his  hand,  which  though  it  may  seem  a  trifling  circumstance, 
yet  it  is  of  importance,  for  by  holding  up  his  hand  constat  de  persona 
indictati  and  he  owns  himself  to  be  of  that  name. 

2.  Reading  the  indictment  distinctly  to  him  in  Enghsh,  that  he  may 
understand  his  charge. 

3.  Demanding  of  him  whether  he  be  guilty  or  not  guilty;  and  if 
he  pleads  not  guilty,  the  clerk  joins  issue  with  him  cul.  prist,  and  en- 
ters the  prisoner's  plea.  Then  he  demands  how  he  will  be  tried.  The 
common  answer  is,  "By  God  and  the  country,"  and  thereupon  the  clerk 
enters  po.  se,  and  prays  to  God  to  send  him  a  good  deliverance. 

But  if  the  prisoner  hath  any  matter  to  plead  either  in  abatement,  or 
in  bar  of  the  indictment,  as  misnomer,  auterfoits  acquit,  auterfoits  con- 
vict, a  pardon,  etc.,  then  he  pleads  it  without  immediate  answering  to 
the  felony ;  but  in  some  cases  si  trove  ne  soit,  then  to  the  felony  not 
guilty,  de  quo  postea.    And  thus  far  what  the  arraignment  is.     *     *     * 

A  man  is  said  to  stand  mute  when,  being  arraigned  for  felony  or 
treason,  either  (1)  he  answers  not  at  all,  or  (2)  if  he  answers  with 
such  matter  as  is  not  allowable  for  answer,  and  will  not  answer  other- 
wise, or  (3)  where  he  pleads  not  guilty,  but  when  demanded  how  he 
will  be  tried,  either  will  say  nothing,  or  not  put  himself  upon  the  coun- 
try. 

If  he  stand  mute  and  say  nothing  at  all,  in  case  of  felony  the  court 
ought  ex  officio  to  impanel  a  jury  and  swear  it  as  an  inquest  of  office 
to  inquire,  whether  he  stand  mute  of  malice,  and  if  found  so,  he 
shall  have  the  judgment  of  peine  fort  et  dure,  or  whether  it  be  ex  visi- 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  117 

tatione  Dei,*  and,  if  found  so,  they  are  to  inquire  touching  all  those 
points,  which  he  might  possibly  plead  for  himself,  as  whether  a  felony 
were  done,  whether  he  be  the  same  person  that  is  indicted  for  it, 
whether  he  did  it,  and  whether  he  hath  any  matter  to  allege  for  his 
discharge. 

But  what  if  all  this  be  found  against  the  prisoner,  what  shall  be 
done?  Whether  judgment  of  death  shall  be  given  against  him,  though 
he  never  pleaded,  seems  yet  undetermined.^ 

2  Hale.  Pleas  of  the  Crown,  216,  316. 


FITZHARRIS'  CASE. 

(Court  of  King's  Bench,  1681.     Vent.  354.) 

Edward  Fitzharris  was  indicted  of  High  Treason;  upon  which  be- 
ing arraigned,  and  demanded  to  plead,  he  delivered  in  a  Paper  con- 
taining a  Plea  to  the  Jurisdiction  of  the  Court;  which  could  not  be 
received  (as  the  Court  said),  not  being  under  Counsel's  Hand. 
Whereupon  he  prayed  to  have  Counsel  assigned,  and  named  divers, 
whereof  the  Court  assigned  four.  And  he  was  taken  from  the  Bar, 
three  or  four  Days  being  given  him  to  advise  with  his  Counsel,  to  pre- 
pare his  Plea  as  they  would  stand  by  him. 

The  Counsel  prayed,  that  they  might  have  a  Copy  of  the  Indictment. 

But  the  Court  denied  it  and  said,  That  it  was  not  permitted  in  Trea- 
son, or  any  other  capital  Crimes. 

But  Justice  DoivBEN  said.  That  sometimes  it  had  been  allowed  to 
take  Notes  out  of  the  Indictment.  Vid.  Mirror,  304.  Abusion  est  que 
Justices  ne  monstre  I'lndictment  a  les  Indictes  s'ils  demandront.  Sec- 
tion 115. 

And  note,  by  St.  7  W.  Ill,  c.  3.  Persons  indicted  of  Treason  where 
Corruption  of  Blood  is,  are  to  have  a  copy  of  their  Indictment  five 
Days  before  their  Trial.' 


HACK  V.  STATE. 

(Supreme  Court  of  Wisconsin,  1910.    141  Wis.  346,  124  N.  W.  492.) 

WiNSLOw,  C.  J.*  The  plaintiff  in  error  (hereinafter  called  the  de- 
fendant) was  convicted  of  selling  whisky  to  a  minor  of  the  age  of  13 
years,  and  brings  his  writ  of  error  to  reverse  the  judgment.     *     *     * 

1  For  procedure  on  arraignment  of  a  dumb  person,  see  Thompson's  Case,  2 
Lewin,  C.  C.  137  (1827). 

2  It  is  now  generally  provided  by  statute  that,  on  failure  to  plead,  a  plea 
of  not  guilty  shall  be  entered.  Reg.  v.  Bernard,  1  Fost,  &  F.  240  (1S5S) ; 
Commonwealth  v.  Place,  153  Pa.  314,  26  Atl.  620  (1893). 

8  While,  on  arraignment,  indictment  should  be  read  in  full,  yet,  if  the  formal 
concludins;  part  is  omitted,  it  will  not  vitiate  a  sentence  pronounced  on  a 
plea  of  guilty.    State  v.  Crane,  121  La.  1039,  46  South.  1009  (190S). 

4  Part  of  this  case  is  omitted. 


lis  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

By  a  singular  oversight  the  defendant  was  not  formally  arraigned 
in  the  circuit  court,  and  never  pleaded  to  the  information.  An  in- 
formation in  due  form  was  filed;  the  jury  was  called  and  sworn;  wit- 
nesses for  both  the  state  and  the  defendant  were  examined  and  cross- 
examined  ;  the  jury  was  charged  by  the  court,  and  rendered  its  ver- 
dict, in  all  respects  as  though  issue  had  been  formally  joined.  Inas- 
much as  the  information  was  valid,  and  the  jury  duly  sworn  and 
charged  with  the  defendant's  deliverance,  he  was  put  in  jeopardy,  so 
that,  had  he  been  acquitted,  he  could  not  have  been  again  prosecuted. 
He  knew  perfectly  well  the  offense  with  which  he  was  charged,  and 
was  allowed  to  make  his  defense  just  as  fully  and  effectively  as  if  a 
plea  of  not  guilty  had  been  made,  and  the  question  now  is  whether  the 
inadvertent  omission  of  arraignment  and  plea,  which  has  not  in  the 
least  affected  any  substantial  right  of  the  defendant,  should  be  held 
fatal  to  the  judgment. 

It  is  freely  conceded  that  the  early  Wisconsin  decisions  answer  this 
question  in  the  affirmative.  Anderson  v.  State,  3  Pin.  367 ;  Douglass 
V.  State,  3  Wis.  820 ;  Davis  v.  State,  38  Wis.  487.  See,  also,  Grain 
V.  U.  S.,  162  U.  S.  625,  16  Sup.  Ct.  952,  40  L.  Ed.  1097,  Avhere  the  au- 
thorities are  reviewed,  and  the  doctrine  contended  for  by  the  defend- 
ant fully  sustained  by  a  divided  court. 

It  must  also  be  conceded  that  it  is  held  by  the  Supreme  Court  of  the 
United  States,  in  the  Grain  Gase,  that  arraignment  and  plea  are  es- 
sential to  due  process  of  law,  guaranteed  to  the  citizen  by  the  four- 
teenth amendment.  A  state  could  not,  therefore,  pass  a  law  providing 
for  trial  without  arraignment  or  plea;  but  that  does  not  necessarily 
affect  the  question  whether  a  citizen  may  not  effectually  waive  that 
right.  This  court  has  held  that  constitutional  rights  may  be  waived 
by  the  defendant,  except,  perhaps,  in  capital  cases.  Thus  an  accused 
person  has  the  absolute  constitutional  right  to  a  trial  by  a  jury,  which 
means  a  body  of  12  competent  jurymen,  yet  this  court  held,  as  early 
as  the  case  of  State  v.  Vogel,  22  Wis.  471,  that  by  not  exercising  his 
right  of  challenge  the  defendant  waived  all  objections  to  the  quali- 
fications of  jurors,  and  a  verdict  of  guilty  would  stand,  notwithstand- 
ing the  fact  that  one  of  the  jurors  was  an  alien,  and  the  further  fact 
that  his  alienage  was  not  known  to  the  defendant.     *     *     * 

No  sound  reason  occurs  to  us  why  a  person  accused  of  a  lesser  crime 
or  misdemeanor,  who  comes  into  court  with  his  attorney,  fully  advised 
of  all  his  rights,  and  furnished  with  every  means  of  making  his  de- 
fense, should  not  be  held  to  w^aive  a  right  or  privilege  for  which  he 
does  not  ask,  just  as  a  party  to  a  civil  action  waives  such  a  right  by 
not  asking  for  it. 

Surely  the  defendant  should  have  every  one  of  his  constitutional 
rights  and  privileges,  but  should  he  be  permitted  to  juggle  with  them' 
Should  he  be  silent  when  he  ought' to  ask  for  some  minor  right  which 
the  court  would  at  once  give  him,  and  then  when  he  has  had  his  trial, 
and  the  issue  has  gone  against  him,  should  he  be  heard  ta  say  there 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  119 

is  error  because  he  was  not  given  his  right?  Should  he  be  allowed 
to  play  his  game  with  loaded  dice?  Should  justice  travel  with  leaden 
heel  because  the  defendant  has  secretly  stored  up  some  technical  er- 
ror, not  affecting  the  merits,  and  thus  secured  a  new  trial  because  for- 
sooth he  can  waive  nothing?  We  think  not.  We  think  that  sound 
reason,  good  sense,  and  the  interests  of  the  public  demand  that  the 
ancient  strict  rule,  framed  originally  for  other  conditions,  be  laid  aside, 
at  least  so  far  as  all  prosecutions  for  offenses  less  than  capital  are  con- 
cerned. We  believe  it  has  been  laid  aside  in  fact  (save  for  the  single 
exception  that  trial  by  a  jury  of  12  cannot  be  waived  unless  authorized 
by  a  specific  law)  by  the  former  decisions  of  this  court.  It  is  believed 
that  this  court  has  uniformly  attempted  to  disregard  mere  formal  er- 
rors and  technical  objections,  not  affecting  any  substantial  right,  and 
to  adhere  to  the  spirit  of  the  law  which  giveth  life  rather  than  to  the 
letter  which  killeth.  It  may  not  always  have  succeeded  ;  it  is  intensely 
human,  but  since  the  writer  has  been  here  he  knows  that  the  attempt 
bas  been  honestly  made.     *     *     * 

Our  conclusion  is  that  the  doctrine  of  Douglass  v.  State,  supra,  and 
the  cases  following  it,  should  be  overruled.  The  principle  now  de- 
clared is  that  the  right  of  arraignment  and  plea  will  be  waived  by  the 
defendant  by  his  silence  when  he  ought  to  demand  it,  in  all  cases  (ex- 
cept capital  cases)  where  it  appears  that  he  is  fully  informed  as  to  the 
charge  against  him,  and  is  not  otherwise  prejudiced  in  the  trial  of  the 
case  by  the  omission  of  that  formality.  Other  Code  states  so  hold. 
People  V.  Osterhout,  34  Hun,  260;  People  v.  Bradner,  107  N.  Y.  1, 
13  N.  E.  87;  State  v.  Cassady,  12  Kan.  550;  State  v.  Straub,  16 
Wash.  Ill,  47  Pac.  227;  Hudson  v.  State,  117  Ga.  704,  45  S.  E.  GQ. 
*     *     * 

Judgment  affirmed.^ 

KervvIN,  J.,  dissents.    Timlin,  J.  (dubitar.te). 


We  are  now  to  consider  the  plea  of  the  prisoner,  or  defensive  mat- 
ter alleged  by  him  on  his  arraignment,  if  he  does  not  confess  or  stand 
mute.  This  is  either:  (1)  A  plea  to  the  jurisdiction;  (2)  a  demur- 
rer; (3)  a  plea  in  abatement;  (4)  a  special  plea  in  bar;  or  (5)  the 
general  issue.  *  *  *  Formerly  there  was  another  plea,  now  ab- 
rogated, that  of  sanctuary."*  *  *  *  Formerly  also  the  benefit  of 
clergy  used  to  be  pleaded  before  trial  or  conviction,  and  was  called  a 
declinatory  plea.''  *  *  *  A  plea  to  the  jurisdiction  is  where  an 
indictment  is  taken  before  a  court  that  hath  no  cognizance  of  the  of- 

6  See,  also,  Hast  v.  Territory,  5  Old.  Cr.  162,  114  Pac.  261  (1911),  rape ; 
contra,  People  v.  Heath  (Colo.)  117  Pac.  138  (1911) ;  State  v.  Drown  (Vt.)  81 
Atl.  641  (1911).  By  statutory  provision  in  some  states  arraignment  may  be 
waived.  See  State'  v.  Thompson,  95  Iowa.  464.  64  N.  W.  419  (1895) ;  People 
V.  Tower,  63  Hun,  624,  17  N.  Y.  Supp.  395  (1892) ;  State  v.  Hoffman,  70  Mo. 
App.  271  (1S97) ;    State  v.  Brock,  61  S.  C.  141,  39  S.  E.  359  (1900). 

e  See  2  Pollock  &  Maitland's  Hist.  Eng.  Law  (1st  Ed.)  588. 

T  See  1  Pollock  &  Maitland's  Hist.  Eng.  Law  (1st  Ed.)  424  et  seq. 


120  arraignm::n  r,  I'LEAS,  AND  motions  (Ch.  10 

fense.  ♦  *  ♦  A  demurrer  to  the  indictment.  This  is  incident  to 
criminal  cases  as  well  as  civil,  when  the  fact  alleged  is  allowed  to  be 
true,  but  the  prisoner  joins  issue  upon  some  point  of  law  in  the  in- 
dictment, by  which  he  insists  that  the  fact,  as  stated,  is  no  felony,  trea- 
son, or  whatever  the  crime  is  alleged  to  be.  *  *  *  Some  have 
held  (2  Hale,  P.  C.  257)  that  if,  on  demurrer,  the  point  of  law  be  ad- 
judged against  the  prisoner,  he  shall  have  judgment  and  execution,  as 
if  convicted  by  verdict.  But  this  is  denied  by  others  (2  Hawk.  P.  C. 
334),  who  hold  that  in  such  case  he  shall  be  directed  and  received  to 
plead  the  general  issue,  not  guilty,  after  a  demurrer  determined  against 
him,  which  appears  the  more  reasonable. 

A  plea  in  abatement  is  principally  for  a  misnomer,  a  wrong  name, 
or  false  addition  to  the  prisoner. 

Special  pleas  in  bar,  which  go  to  the  merits  of  the  indictment,  and 
give  a  reason  why  the  prisoner  ought  not  to  answer  it  at  all,  nor  put 
himself  upon  his  trial  for  the  crime  alleged.  These  are  of  four  kinds: 
A  former  acquittal,  a  former  conviction,  a  former  attainder,  or  a  par- 
don. 

4  Black.  Com.  c.  XXVI. 


REGINA  V.  FADERMAN. 
(Central  Criminal  Court,  ISoO.     3  Car.  &  K.  3G3.) 

Demurrer.  The  prisoners  were  indicted  at  the  Central  Criminal 
Court  of  the  February  session,  1850,  and  Mr.  Justice  Vaughan  Wil- 
liams stated  the  following  case  for  the  opinion  of  the  Court  for  Crown 
Cases  Reserved: 

"The  prisoners  were  indicted  under  Stat.  1  Wm.  IV,  c.  66,  §  19, 
by  which  it  is  made  a  felony  to  engrave,  etc.  (without  authority),  on 
any  plate  or  on  any  wood,  stone  or  other  material,  any  bill  of  ex- 
change, promissory  note,  undertaking  or  order  for  the  payment  of 
money  or  any  part  of  any  bill  of  exchange,  etc.,  of  any  foreign  prince 
or  state,  or  knowingly  to  have  in  possession  any  plate,  etc.,  so  en- 
graved, or  to  utter  or  to  knowingly  have  in  possession  any  paper  on 
which  any  part  of  such  foreign  bill,  etc.,  shall  be  made  or  printed. 

"The  counsel  for  the  prisoners  demurred  to  the  indictment,  and  the 
demurrer  having  been  argued,  I  gave  judgment  for  the  crown.  But  I 
reserved  the  question  as  to  the  validity  of  the  indictment  (a  copy  of 
which  will  accompany  this  statement)  for  the  consideration  of  this 
court.  [Signed]     Edw.  Vaughan  Williams."  * 

Alderson,  B.,  now  delivered  the  opinion  of  the  [Central  Criminal] 
Court  as  to  what  judgment  should  be  entered  up  on  the  demurrer. 
His  Lordship  said: 

The  first  question  is  whether  this  demurrer  can  be  sustained,  and 

«  The  Court  for  Crown  Cases  Reserved  held  it  had  no  .iurisdiction  in  a 
case  in  which  .lud.cment  had  been  Riven  on  a  demurrer  and  therefore  gave 
no  judg^ment.    The  proceedings  in  that  court  are  here  omitted. 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  121 

it  is  the  unanimous  opinion  of  the  court  that  the  demurrer  must  be 
overruled,  inasmuch  as  it  appears  to  the  court  that  many  of  the  counts 
in  this  indictment  are  clearly  good ;  and  as  one  good  count  would  be 
sufficient  to  authorize  a  conviction  and  judgment,  the  court  is  clearly 
of  opinion  that  this  demurrer,  which  goes  to  the  sufficiency  of  the 
whole  indictment,  must  be  overruled.  A  more  important  question  re- 
mains to  be  disposed  of,  which  is  as  to  what  judgment  this  court  ought 
to  pronounce  on  the  demurrer  being  overruled.  Whether  the  prisoners 
are  to  be  allowed  to  plead  over?  or  whether  final  judgment  should  be 
passed  upon  them  as  in  the  case  of  a  conviction?  We  have  taken  time 
to  .look  into  the  authorities  on  the  subject,  and  have  taken  consider- 
able pains  to  ascertain  what  is  the  right  course  to  be  taken  in  this 
case,  and  the  result  at  which  we  have  arrived  is  that  the  judgment  must 
be  final,  inasmuch  as  by  a  general  demurrer,  which  this  is,  the  pris- 
oners confess  all  the  material  facts  charged  against  them  in  the  in- 
dictment. In  the  case  of  a  demurrer  of  a  special  nature,  which  is 
usually  called  a  demurrer  in  abatement,  it  may  be  otherwise ;  and  it 
is  very  probable  that  the  various  dicta  which  occur  in  the  books  in 
opposition  to  our  present  decision  may  be  accounted  for  by  this  dis- 
tinction not  having  been  sufficiently  attended  to. 

Parry,  for  the  prisoner,  asked  that  they  might  be  allowed  to  with- 
draw the  demurrer,  and  plead  not  guilty. 

Alderson,  B.  We  cannot  allow  that,  and  I  think  that  such  a  pro- 
ceeding ought  not  to  be  encouraged. 

On  a  subsequent  day  sentence  was  passed  on  the  prisoners.' 

8  Accord:  Where  the  Indictment  is  for  a  misdemeanor.  Wickwise  v.  State. 
19  Conn.  477  (1849);  McCueu  v.  State.  19  Ark.  630  (1858).  It  is  in  the 
discretion  of  the  court,  however,  to  allow  the  defendant  to  answer  over. 
Commonwealth  v.  Gloucester,  110  Mass.  500  (1872) ;  State  v.  Wilkins.  17  Vt. 
151  (1845).  It  is  generally  said,  in  the  cases  in  this  country,  that,  while  judg- 
ment adverse  to  defendant  on  a  demurrer  to  an  indictment  for  a  misdemeanor 
is  final,  the  like  judgment  on  an  indictment  for  felony  must  be  respondeat 
ouster.  State  v.  Merrill,  37  Me.  329  (1853) ;  Commonwealth  v.  Foggy,  6  Leigh 
(Ya.)  G3S  (1836) ;  McCuen  v.  State,  19  Ark.  630  (1858).  In  some  states,  by 
statute,  the  right  to  plead  over  is  secured  to  the  defendant,  even  in  cases 
of  misdemeanor.    Thomas  v.  State,  6  Mo.  457  (1840). 

"A  plea  of  nolo  contendere,  when  accepted  by  the  court,  is,  in  its  effect 
upon  the  case,  equivalent  to  a  plea  of  guilty.  It  is  an  implied  confession  of 
guilt  only,  and  cannot  be  used  against  the  defendant  as  an  admission  in  any 
civil  suit  for  the  same  act.  The  judgment  of  conviction  follows  upon  such 
a  plea,  as  well  as  upon  a  plea  of  guilty,  and  such  plea,  if  accepted,  cannot 
be  withdrawn,  and  a  plea  of  not  guilty  entered,  except  by  leave  of  court. 
But  there  is  a  difference  between  the  two  pleas,  in  that  the  defendant  cannot 
plead  nolo  contendere  without  the  leave  of  the  court.  If  such  plea  is  ten- 
dered, the  court  may  accept  or  decline  it  in  its  discretion."  Morton,  C.  J., 
in  Commonwealth  v.  Ingersoll,  145  Mass.  381.  14  N.  E.  449  (1887). 

In  some  states  statutes  provide  that  in  capital  cases  the  plea  of  guilty  shall 
not  be  received.     State  v.  Genz,  57  N.  J.  Law,  459,  31  Atl.  1037  (1S95). 

"By  a  plea  of  guilty  the  defendant  confesses  himself  guilty  in  manner  and 
form  as  charged  in  the  indictment ;  and  if  the  indictment  charges  no  offense 
against  the  law,  none  is  confessed."  McEnery,  J.,  in  State  v.  Watson,  41  La. 
Ann.  599,  7  South.  126  (1889). 


122  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Cll.  10 

SECTION  2.— NOLLE  PROSEQUI  AND  MOTION  TO  QUASH 


■       STATE  V.  SMITH. 

(Supreme  Judicial  Court  of  New   Hampshire,   1S70.     49  N.   H.   155,   C   Am. 

Kep.  4S0.) 

Five  indictments  were  found  March  term,  1869,  against  Willard 
Smith,  three  of  them  for  selUng  hquor,  one  for  keeping  hquor  for 
sale,  and  one  for  being  a  common  seller.  At  March  term,  1869,  re- 
spondent pleaded  "not  guilty."  At  the  September  term,  the  solicitor 
stated  that  he  believed  that  the  respondent  had  ceased  the  sale  of 
liquor,  and  that  he  had  arranged  with  respondent's  counsel  that,  if 
the  respondent  pleaded  nolo  contendere  to  all  the  indictments,  the  state 
would  at  this  time  move  for  sentence  on  only  one  indictment,  reserv- 
ing the  right  to  bring  forward  the  other  indictments  and  move  for 
sentence  if  the  respondent  should,  in  future,  violate  the  liquor  law. 
Thereupon  Peter  Sherman  moved  for  leave  to  appear  and  prosecute 
the  indictments,  alleging  that  he  was  the  complainant,  and  entitled  to 
half  the  fines,  and  that  respondent  has  not  ceased  the  sale  of  Hquor. 
Sherman  also  moved  that,  if  necessary,  to  entitle  him  to  appear,  or  to 
receive  half  the  fine,  the  indictments  might  be  so  amended  as  to  aver 
that  he  was  the  complainant.  The  solicitor  and  the  respondent  both 
objected. 

For  the  purpose  of  allowing  the  questions  thus  arising  to  be  re- 
served, it  was  ruled  pro  forma,  and  subject  to  exception,  that  Sher- 
man's motions  should  be  granted,  if  it  should  hereafter  be  made  to 
appear,  by  proper  proof,  that  he  was  complainant. 

Case  reserved. 

Nesmith,  J.^°  No  question  is  made,  by  the  counsel  on  either  side, 
as  to  the  general  discretionary  power  of  the  prosecuting  officer,  in  this 
state,  to  enter  a  nolle  prosequi  in  ordinary  indictments  instituted  in  the 
name  of  the  state.  This  power  such  officer  exercises  virtute  of- 
ficii, frequently  before  a  jury  is  impaneled,  and  sometimes  while  the 
case  is  on  trial  before  the  jury,  with  the  consent  of  the  respondent, 
and  sometimes  after  a  verdict  is  rendered  against  the  prisoner. 

It  may  be  that  the  prosecuting  officer  finds  his  indictment  defective 
in  form  or  substance,  and  that  he  may  wish  to  procure  a  better  one,  or 
he  may  discover  that  the  evidence  will  not  sustain  the  charge  as  al- 
leged, and  a  change  may  be  requisite  to  conform  to  the  actual  proof. 
There  may  be  various  reasons  for  discontinuing  the  prosecution,  all 
which  he  must  determine,  being  controlled  by  well-settled  principles 
of  law  and  practice,  and  a  sound  legal  discretion.  It  is  not  to  be  pre- 
sumed that  this  officer  will  voluntarily  consent  to  any  discontinuance 
which  will  materially  injure  the  rights  of  the  prisoner,  or  that  he  will 

10  Part  of  this  case  is  omitted. 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  123 

violate  knowingly  his  official  trust,  or  in  any  way  act  corruptly  or  op- 
pressively. 

Generally,  whether  a  jury  shall  be  impaneled,  or  not,  depends  upon 
the  determination  of  the  prosecuting  officer;  but,  when  a  jury  is  or- 
ganized and  the  trial  commences,  the  respondent  then  acquires  new 
rights,  which  the  court  will  protect.  It  may  be  regarded  as  the  re- 
spondent's right  to  have  the  jury  pass  upon  the  facts  of  his  case,  be- 
cause their  verdict  becomes  a  bar  to  another  indictment  for  the  same 
offense,  and  a  nolle  prosequi  will  not  thus  operate  for  the  prisoner's 
benefit.  Therefore,  in  this  state  of  the  proceedings,  the  prisoner  hav- 
ing a  right  to  insist  upon  a  verdict  upon  the  whole  evidence  of  the 
case,  of  course,  there  can  be  no  discontinuance  of  the  prosecution  ex- 
cept upon  the  prisoner's  express  consent.^ ^ 

These  elementary  principles  are  discussed  in  Aaron  Burr's  Trial, 
seriatim;  also  in  Commonwealth  v.  Tuck,  20  Pick.  365,  and  other 
cases  cited  by  respondent's  counsel.  In  the  latter  case.  Chief  Justice 
Shaw  claims  the  power  to  the  Attorney  General,  or  other  prosecuting 
officer,  to  enter  a  nolle  prosequi  after  verdict  against  the  prisoner,  and 
says  such  a  practice  has  prevailed  for  many  years,  and  is  found  highly 
useful  to  the  due  administration  of  the  criminal  law.  It  may  be  ascer- 
tained that  the  party  convicted  may  still  be  innocent.  It  may  become 
important  to  use  him  as  a  witness  against  more  flagrant  offenders. 
The  power  to  enter  a  nolle  prosequi  exists  in  the  prosecuting  officer. 
He  exerts  it  upon  his  official  responsibility.  The  court  has  no  right 
to  interfere  in  its  exercise.  They  can  only  judge  of  the  effect  of  the 
act,  when  done,  or  of  the  legal  consequences  which  may  follow  from 
it.  The  court  will  take  care  that  it  shall  not  operate  to  the  prejudice  of 
the  respondent's  rights.  Commonwealth  v,  F.  O.  J.  Smith,  98  Mass. 
10 ;   1  Chitty's  Crim.  Law,  479  and  845. 

The  counsel  for  the  prosecutor,  Sherman,  claims  the  right  for  his 
client  to  interfere  with  the  practice  of  the  soHcitor  in  this  particular 
case,  and  asked  for  leave  of  the  court  to  be  granted  to  him  to  appear 
and  prosecute  these  indictments.     Under  a  fair  construction  of  sec- 

11  Accord:  Commonwealth  v.  Scott,  121  Mass.  33  (1876).  But  see  State  v. 
Roe.  12  Yt.  93  (1S40) :    Wilson  v.  Commonwealth,  3  Bush  (Ky.)  105  (1S67). 

"Any  part  of  a  count,  which  is  in  its  nature  severable  from  the  rest,  may  be 
removed  by  nolle  prosequi,  and  the  remainder  stand."  Peters,  C.  J.,  in  State 
V.  Bean,  77  Me.  4S7  (1SS5). 

'"The  power  of  the  court  to  order  the  representative  of  the  state  to  enter 
a  nolle  prosequi  upon  an  indictment  presents  a  different  question.  At  the 
common  law  only  the  Attorney  General  could  exercise  this  power,  and  iu 
doing  so  was  bevond  the  power  or  control  of  the  court.  1  Arch.  Cr.  Plead. 
(Pomeroy's  Notes)  316 ;  People  v.  McLeod.  1  Hill  [N.  T.]  377  [37  Am.  Dec.  32S1 ; 
State  v.  Graham,  41  N.  J.  Law,  15  [32  Am.  Rep.  174]."  Knapp,  J.,  in  State 
V.  Hickling,  45  N.  J.  Law.  154  (1SS3). 

"There  seems  no  good  reason  why  the  motion  of  the  attorney  for  the  gov- 
ernment (to  strike  oflf  an  entry  of  nol.  pros,  from  the  docket)  should  not 
have  been  granted,  and  in  granting  it  the  court  took  especial  care  that  the 
prisoner  should  not  suffer  therefrom  in  his  defense."  Appleton,  J.,  in  State 
V.  Nutting,  39  Me.  362  (1855). 

Accord:  Parry  v.  State.  21  Tex.  746  (1858).  But  see  Henry  v.  Common- 
wealth, 4  Bush  (Ky.)  427  (1868) ;    Xistler  v.  State,  64  Ind.  371  (1878). 


1.24  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

tion  21  of  chapter  99  of  the  General  Statutes,  we  think  it  was  the 
clear  intent  of  the  Legislature  to  give  him,  who  might  volunteer  to 
prosecute  for  the  violations  of  the  law  embraced  in  this  chapter,  a 
bounty  or  a  reward  equal  to  one-half  the  fines  that  should  be  collected 
by  means  of  such  prosecutions.  As  the  statute  in  this  case  prescribes 
no  new  mode  of  proceeding  under  it,  in  order  to  establish  the  right  of 
the  complainant  to  recover  his  bounty,  it  must  be  presumed  that  he 
must  obtain  his  remedy  according  to  the  ordinary  rules  of  practice,  as 
known  in  our  courts.  It  therefore  cannot  be  presumed  that  the  com- 
plainant can  come  into  court,  and  oppose  the  predetermined  action  of 
the  prosecuting  officer,  or  that  he  can  set  up  his  will  as  superior  to 
the  fiat  of  the  officer.  Such  a  practice  would  introduce  confusion  into 
this  department  of  the  law.  An  attempt  of  the  kind  indicated  by  the 
prosecutor's  motion  was  lately  made  in  the  Court  of  the  Queen's 
Bench,  in  England,  and  failed  there  for  the  reasons  suggested  by  the 
justices  of  that  court.  Regina  v.  Allen,  1  Best  &  Smith,  101  (Eng. 
C.  L.  Reports,  854).  ♦  *  * 
Motion  denied. 


PEOPLE  v.  DAVIS. 
(Court  of  Appeals  of  New  York,  1874.    56  N.  T.  95.) 

GrovER,  J.^2  The  indictment  charged  the  commission  of  the  crime 
at  the  town  of  Brookfield,  in  the  county  of  Madison,  and  within  500 
yards  of  the  boundary  line  between  the  county  of  Otsego  and  the 
county  of  Madison.  The  counsel  for  the  accused  moved  to  quash  it 
because  the  crime  was  not  charged  to  have  been  committed  in  the 
county  of  Otsego.    *    *    * 

The  counsel  for  the  prisoner  also  excepted  to  the  denial  of  his  mo- 
tion to  quash  the  third  count,  or  to  compel  the  prosecutor  to  elect  upon 
which  offense  therein  charged  he  would  proceed.  The  denial  of  this 
motion  was  not  the  proper  subject  of  an  exception.  The  accused  has 
not  a  legal  right  to  have  the  sufficiency  of  an  indictment,  or  of  any 
count  therein,  determined  upon  motion  to  quash  or  set  it  aside,  or  to 
put  the  prosecutor  to  an  election,  when  more  than  one  oft'ense  is 
charged,  upon  which  he  will  proceed.  It  is  in  the  discretion  of  the 
court  whether  or  not  to  set  aside  a  defective  indictment  upon  motion ; 
and  unless  the  question  is  free  from  doubt,  the  court  ought  not  to  do 
it,  but  leave  the  counsel  jto  his  demurrer,  or  motion  in  arrest  of  judg- 
ment.   *    *    * 

12  Part  of  this  case  is  omitted. 


Ch.  10)  ARRAIGNiMEXT,  PLEAS,  AND    MOTIONS  125 

STATE  V.  RIFFE. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1877.    10  W.  Va.  794.) 

Moore,  Judge,  delivered  the  opinion  of  the  court.^' 

An  indictment  was  found  in  the  circuit  court  of  Monroe  county 
against  A.  L.  Riffe  for  selling  spirituous  liquors  without  license.  On 
the  18th  October,  1872,  the  defendant  appeared  and  plead  not  guilty; 
and  on  the  16th  October,  1874,  defendant  again  appeared,  and  moved 
the  court  to  quash  said  indictment,  which  motion  was  sustained,  and 
the  defendant  discharged.  Thereupon  the  state  petitioned  for  and 
obtained  from  this  court  a  writ  of  error,  and  in  that  way  presents 
the  case  for  the  adjudication  of  this  court  upon  two  alleged  grounds 
of  error.    *    *    * 

It  was  error  to  quash  the  indictment,  for  the  reason  that  the  mo- 
tion came  too  late;  the  defendant  having  long  before  plead  to  the  in- 
dictment.   *    *    * 

As  to  the  question  that  the  motion  to  quash  was  made  after  the 
plea  had  been  entered :  The  proper  course  is  to  move  to  quash  before 
pleading,  but  the  court  may,  at  any  time  before  the  trial  upon  the 
plea,  permit  the  plea  to  be  withdrawn,  and  enter  the  motion  to  quash, 
at  the  instance  of  the  defendant. 

The  judgment  of  the  circuit  court  should  be  reversed,  with  costs  to 
the  state  against  the  defendant,  and  the  case  remanded  to  the  circuit 
court,  to  be  proceeded  in  according  to  the  principles  enunciated  in  this 
opinion,  and  further  according  to  law. 

Judgment  reversed  and  case  remanded. 


SECTION  3.— PLEA  OF  FORMER  JEOPARDY 


If  they  [the  Jurors]  declare  upon  their  oaths  that  they  know  nothing 
of' the  fact,  let  others  be  called  who  do  know  it,  and  if  he  who  put  him- 
self on  the  first  inquest  will  not  put  himself  on  a  new  jury,  let  him  be 
remanded  back  to  penance  till  he  consents  thereto, 

Britton  (Nichol's  Trans.)  lib.  1,  12  b. 


It  is  a  good  plea  on  appeal  or  indictment  of  felony  to  say  that  he 
was  formerly  arraigned  for  the  same  felony  before  such  justices,  &c., 

13  The  arguments  of  counsel  and  parts  of  the  opinion  are  omitted. 


126  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

and  acquitted,  and  to  vouch  the  record ;  for  he  is  not  required  to  have 
the  record  in  hand,  for  this  plea  is  not  a  dilatory  plea,  but  a  plea  in 
bar,  as  appears,  tit.  Coron.  in  Fitz.  P.  232.  M.  20  E.  2.  &c.,  such  plea 
is  a  good  bar,  because  a  man  by  the  common  law  should  not  put  his 
life  twice  in  jeopardy  of  trial  for  the  same  felony,  except  it  be  in  some 
special  case,  of  which  I  will  speak  hereafter.  But  note  that  it  ought  to 
be  the  same  offense,  for  otherwise  his  plea  is  not  to  the  purpose,  and 
therefore  if  two  men  are  indicted  of  felony  as  principals,  and  then  by 
another  indictment  it  is  found  that  one  committed  the  felony  and  the 
other  only  feloniously  received  him  after  the  felony  was  committed, 
and  upon  the  first  indictment  both  are  arraigned  and  acquitted,  and 
then  he  who  is  indicted  as  accessory  is  arraigned,  and  he  pleads  that 
he  was  formerly  acquitted  as  above,  this  plea  should  not  discharge 
him,  because  it  is  not  the  same  offense,  but  a  different  one,  for  it  is 
done  on  dift'erent  days,  which  see  titulo  Corone  in  Fitz.  P.  200 ;  anno 
27  lib.  ass.  P.  10,  and  H.  8.  H.  5.  P.  493.  But  if  he  was  indicted  as 
an  accessory  before  the  offense  committed,  this  acquittal  of  him  as  a 
principal  should  discharge  him  of  this  offense  also,  for  it  is  in  manner 
one  offense  although  it  is  done  on  several  days,  for  when  the  felony  is 
committed  by  force  of  command  or  abetment  the  one  who  commands 
in  such  case  is  a  party  to  the  principal  felony.  But  it  is  otherwise  witli 
the  accessory  after  the  felony  committed,  and  with  this  agrees  Bracton. 
Staunford,  P.  C.  lib.  2,  c.  36,  p.  105. 


If  a  man  be  acquitted  on  an  appeal  or  upon  the  indictment,  although 
there  be  error  in  the  process,  the  acquittal  is  good.  But  it  is  different 
where  the  appeal  or  the  indictment  was  not  sufficient,  etc. 

Fitz.  Corone,  fol.  239,  pi.  444. 


HUTCHINSON'S  CASE. 

(Court  of  King's  Bench,  1677.     1  Leach,  C.  C  105,  note.) 

Mr.  Hutchinson,  who  had  killed  Mr.  Colson  in  Portugal,  was  ac- 
quitted there  of  the  murder;  and  being  afterwards  apprehended  in 
England  for  the  same  fact,  and  committed  to  Newgate,  he  was  brought 
into  the  Court  of  King's  Bench  by  habeas  corpus,  where  he  produced 
an  exemplification  of  the  record  of  his  acquittal  in  Portugal;  but  the 
king  being  very  willing  to  have  him  tried  here  for  the  same  offense,  it 
was  referred  to  the  consideration  of  the  judges,  who  all  agreed  that, 
as  he  had  been  already  acquitted  of  the  charge  by  the  law  of  Portugal, 
he  could  not  be  tried  again  for  it  in  England.^* 

i<  P.iit  an  acquittal  by  a  court-martial  is  no  bar  to  a  subsequent  prosecution 
before  a  court  of  law.  'in  re  Fair  (C.  C.)  100  Fed.  149  (1000).  So  an  act  may 
offend  against  the  law  of  more  than  one  jurisdiction,  in  which  case  a  con- 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  127 

JONES  AND  BEVER'S  CASE. 

(Court  of  King's  Bench,   1GG5.     Kelyug,  52.) 

At  the  Gaol-delivery  in  the  Old  Baily,  19  February,  1GG5,  John 
Jones  and  Philip  Bever,  were  indicted  for  Burglary  for  breaking  the 
King's  House  at  Whitehall,  and  stealing  from  thence  the  Goods  of 
the  Lord  Cornbury,  and  were  found  not  Guilty.  And  after  were  in- 
dicted for  the  same  Burglary,  and  steaHng  the  Goods  of  Mr.  Nunnesy. 
And  we  agreed  that  they  being  once  acquitted  for  the  Burglary,  could 
not  be  indicted  again  for  the  same  Burglary,  but  might  be  indicted  for 
stealing  the  Goods  of  Mr.  Nunnesy  according  as  it  was  formerly  re- 
solved in  Turner's  Case.  Vide  Kelyng,  30.  .  But  in  this  case  when  we 
saw  the  Evidence  not  sufficient  to  prove  the  stealing  of  my  Lord  Corn- 
bury's  Goods,  we  might  have  discharged  the  jury  and  so  taken  no 
Verdict  ;^°  and  then  he  might  have  been  indicted  for  that  Burglary, 
and  stealing  the  Goods  of  Mr.  Nunnesy. 


REX  V.  JANE  D . 

(Court  of  King's  Bench,  1670.     Vent.  G9.) 

She  was  indicted  for  stealing  of  several  things,  and  pleaded  not 
guilty,  and  a  jury  sworn  to  try  her;  the  witnesses,  not  appearing,  were 
suspected  to  be  tampered  with  by  the  prisoner;  and  the  jury  were 
discharged,  and  the  trial  put  off.'**    Vide  1  Inst.  227,  b,  contra. 

vlction  or  acquittal  In  one  jurisdiction  is  no  bar  to  a  prosecution  in  the  other. 
State  V.  Norman,  16  Utah,  457,  52  Pac.  9S6  (1S9S) ;  State  v.  Reid,  115  N.  a 
741,  20  S.  E.  468  (1894).  Compare  People  v.  Hanrahau,  75  Mich.  611,  42  X. 
W.  1124,  4  L.  R.  A.  751  (1S89).  The  constitutional  provision  against  double 
jeopardy  does  not  apply  to  a  contempt  proceeding.  Jones  v.  Mould,  151  Iowa, 
599,  132  N.  W.  45  (1911). 

15  "By  the  ancient  law  if  the  jury  sworn  had  been  particularly  charged 
with  a  prisoner,  as  before  is  showed,  it  was  commonly  held  *  *  *  they 
could  not  be  discharged  before  their  verdict  given  up.  *  *  *  But  nothing 
is  more  ordinary  than  after  the  jury  sworn,  and  charged  with  a  prisoner,  and 
evidence  given,  yet  if  it  appear  to  the  court  that  some  of  the  evidence  is 
kept  back,  or  takgn  off,  or  that  there  may  be  a  fuller  discovery,  and  the  of- 
fense-notorious, as  murder  or  burglary,  and  that  the  evidence,  though  not 
sufficient  to  convict  the  prisoner,  yet  gives  the  court  a  great  and  strong 
suspicion  of  his  guilt,  the  court  may  discharge  the  jury  of  the  prisoner."  2 
Hale,  P.  C.  295. 

"Nor  is  it  now  a  question,  nor,  I  hope,  will  it  ever  be  a  question  again, 
whether  in  a  capital  case  the  court  may,  in  their  discretion,  discharge  a  jury 
after  evidence  given  and  concluded  on  the  part  of  the  crown,  merely  for 
want  of  sufficient  evidence  to  convict,  and  In  order  to  bring  the  prisoner  to 
a  second  trial."  Foster,  J.,  in  Kinloch's  Case,  Foster,  C.  L.  30  (1746).  See, 
also.  Revnolds  v.  State.  3  Ga.  53  (1847).  Compare  People  v.  Ny  Sam  Chung, 
94  Cal.  304,  29  Pac.  642.  28  Am.  St.  Rep.  129  (1S02) ;  State  v.  Richardson,  47 
S.  C.  166,  25  S.  E.  220,  35  L.  R.  A.  238  (1896) ;  Pizano  v.  State,  20  Tex.  App. 
139,  54  Am.  Rep.  511  (1886). 

16  Accord:    "SVhere  juror   fraudulently   procures   himself   to   be  impaneled.. 


128  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

,    ANONYMOUS. 
(Assizes,  1351.     Lib.  Ass.  122,  pi.  IG.) 

An  indictment  for  the  death  of  W.  White  at  N,  and  he  alleges  a 
record  by  which  it  appeared  formerly  he  was  acquitted  of  the  death  of 
W.  D.  at  E.  and  said  that  this  was  the  same  person,  and  now  offers  the 
record,  &c.  And  other  witnesses  say  that  it  was  the  same  person. 
Wherefore  it  was  adjudged  that  he  be  acquit,  &c.^^ 


STATE  V.  BENHAM. 

(Supreme  Court  of  Errors  of  Connecticut,  1S29.     7  Conn.  414.) 

Williams,  J.^*  The  statute,  upon  which  this  information  is  found- 
ed, enacts:  "That  if  any  person  shall  have  in  possession,  or  receive 
from  any  other  person,  any  forged  or  counterfeited  promissory  note 
or  bill,  for  the  payment  of  money,  with  intention  to  utter  or  pass  the 
same,  or  to  permit,  cause  or  procure  the  same  to  be  uttered  or  passed, 
with  intention  to  defraud  any  person,  or  body  politic  or  corporate, 
knowing  the  same  to  be  forged  or  counterfeited;  every  such  person, 
so  offending,  being  thereof  duly  convicted,  shall  suffer  imprisonment," 
etc.  St,  157,  tit.  22,  §  35.  The  prisoner  had  in  his  possession,  at  one 
time,  several  bank  notes  or  bills  of  different  banks,  which  were  taken 
from  him  at  one  time.  He  has  been  tried  for  having  one  of  them  in 
his  possession,  and  convicted;  and  the  question  now  is,  whether  he 
can  be  again  tried  and  convicted  for  possessing  each  of  the  other  notes 
of  the  different  banks,  which  he  had  at  that  time.    In  other  words,  is 

State  V.  Washington,  89  N.  C.  535,  45  Am.  Rep.  700  (18S3).  Where  a  .1nror 
becomes  too  ill  during  the  trial  to  attend.  Gardes  v.  U.  S.,  87  Fed.  172.  30  C. 
C.  A.  596  (1S9S).  Where  the  jury  is  discharged  with  consent  of  defendant. 
State  V.  Allen,  46  Conn.  531  (1879).  Where  defendant  himself  has  made  it 
Impossible  for  a  valid  verdict  to  be  rendered,  or  a  valid  judgment  entered 
against  him.  People  v.  Higgins,  59  Cal.  357  (1881).  See,  also,  Simmons  v.  U. 
3.,  142  U.  S.  148,  12  Sup.  Ct.  171,  35  L.  Ed.  9G8  (1891). 

When  defendant  obtains  a  new  trial  after  a  conviction  of  manslaughter, 
or  of  murder  in  some  degree  less  than  that  of  which  he  might  have  been  con- 
victed on  xin  indictment  for  murder,  the  authorities  are  in  conflict  on  the 
•question  whether  the  conviction  of  manslaughter  was  an  acquittal  of  the 
murder,  so  as  to  bar  a  subsequent  indictment  for  murder  on  the  same  facts. 
See,  for  the  affirmative.  People  v.  McFarlane,  138  Cal.  481,  71  Pac.  568,  72 
Pac.  48,  61  L.  R.  A.  245  (1903) ;  Rolls  v.  State,  52  Miss.  391  (187G) ;  State 
V.  Belden,  33  Wis.  120,  14  Am.  Rep.  748  (1873).  Contra:  Res.  v.  Tancock,  13 
Cox  C.  C.  217  (1870) ;  Waller  v.  State,  104  Ga.  505,  30  S.  E.  S35  (1898) ;  State 
T.  Bradley,  67  Vt  405,  32  Atl.  238  (1894);  State  v.  Behimer,  20  Ohio  St. 
572  (1870). 

17  "If  the  prisoner  be  now  arraigned  of  a  felony  by  the  name  of  A.  B.  (by 
which  name,  as  also  by  the  name  of  A.  C,  he  Is  well  enough  known),  then 
may  he  say  that  he  was  before  time  acquitted  of  the  same  felouie,  before 
Buch  or  such  justice,  by  the  name  of  A.  B.,  averring  that  he  is  the  same 
person  and  that  he  is  known  by  the  one  and  the  other  calling.  Lib.  Ass.  26, 
pi.  15  &  11  II.  4,  93."     Lamb.  Eirenar.  5.>5. 

18  The  statement  and  the  arguments  of  counsel  are  omitted. 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  129 

the  possession  of  each  bill  or  note,  holclen  at  one  and  at  the  same  time, 
a  distinct  offense,  and  punishable  as  a  distinct  crime? 

Until  the  late  revision  of  our  statutes,  it  was  not  punishable  by  stat- 
ute to  have  in  one's  possession  forged  notes  or  counterfeited  coin. 
The  offense  consisted  in  uttering  or  putting  them  off.  Now  the  pos- 
session is  punishable  in  the  same  manner  as  the  off'ense  of  uttering 
them  is.  But  it  cannot  be  supposed  that  the  Legislature  intended  to 
punish  the  offense  of  possessing  such  bills  or  notes,  or  coin,  more 
severely  than  the  crime  of  putting  them  off;  or  that  they  should  pun- 
ish the  man.  who  barely  intended  to  defraud,  but  had  not  yet  offered 
to,  more  severely  than  the  one  who  had  put  that  intent  into  execution. 
And  if  Benham  had  put  off  these  two  notes  to  one  person,  at  one  time, 
it  cannot  be  claimed  that  he  could  be  convicted  of  more  than  one  of- 
fense. And  yet  it  is  claimed  that  having  them  in  his  possession,  al- 
though he  has  never  offered  to  put  them  off,  he  may  be  punished  for 
more  than  one  offense. 

In  support  of  this  it  is  said  that  the  notes  are  issued  by  different 
banks,  and  the  intent  charged  is  to  defraud  the  two  different  banks 
specified,  viz.,  the  Troy  Bank  and  the  Mechanics'  Bank,  as  well  as  the 
persons  to  whom  the  notes  might  be  put  off.  If  a  charge  of  defraud- 
ing the  several  banks  constitutes  two  distinct  offenses,  then  the  offense 
of  uttering  these  two  notes  to  the  same  person,  at  the  same  time,  would 
be  two  offenses ;  because  the  intent  might  properly  be  charged  as  an 
intent  to  defraud  each  of  the  banks,  as  well  as  the  persons  to  whom 
they  were  put  off. 

But,  as  in  that  case,  the  putting  off  a  note,  with  intent  to  defraud 
the  persons  to  whom  it  was  put  oft',  would  be  sufficient  to  convict, 
whether  there  was  any  attempt  to  defraud  the  bank  or  not,  as  was  re- 
cently decided  in  England,  by  the  twelve  judges;  so  in  this  case,  as 
it  is  charged  in  both  informations  that  the  intention  was  to  defraud 
the  persons  to  whom  the  notes  might  be  put  off,  that  would  be  suffi- 
cient to  justify  the  conviction;  and  all  that  is  necessary  to  constitute 
the  identity  of  the  offense  is  that  the  same  evidence  would  convict. 
Here  the  same  evidence  of  possession  exists  in  both  cases ;  the  same 
general  attempt  to  defraud  the  persons  to  whom  they  may  be  passed. 
The  act  of  possessing  the  several  notes,  then,  must  be  one  and  the 
same  offense,  as  much  as  the  act  of  stealing  a  number  of  articles,  at 
the  same  time  and  place. 

It  was  admitted  in  argument  that  he  who  had  counterfeit  coins  in 
his  possession  could  not,  under  the  thirty-second  section,  be  punished, 
as  for  distinct  offenses,  for  each  piece  of  counterfeit  coin  he  miglit 
have.  The  offense  is,  certainly,  of  the  same  character  with  this ;  and 
it  is  difficult  to  believe  that  the  Legislature  intended  to  punish  them 
in  so  different  a  manner.  It  is  true  that  in  that  section  the  statute 
speaks  of  gold  and  silver  coins ;  but  it  will  hardly  be  contended  that 
if  a  person  has  a  single  counterfeit  eagle  in  his  possession,  with  in- 
tent to  pass  it  knowing  that  it  is  counterfeit,  he  is  not  within  the  stat- 
Mik.Ce.Pe. (Abridged  Ed.) — 9 


130  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

ute.  The  difference  in  phraseology,  therefore,  it  is  believed,  will  make 
no  difference  in  the  construction.  The  object  of  the  Legislature,  in 
both  cases,  is  to  prevent  a  person  from  altering-  or  having  in  his  pos- 
session base  money.  And  it  has  been  decided  that  a  person  indicted  for 
stealing  nine  one  pound  notes,  may  be  convicted  upon  proof  of  steal- 
ing only  one.  Rex  v.  Johnson,  3  Mau.  &  Selw.  539,  548 ;  Rex  v.  Clark, 
1  Brod.  &  Bing.  473.  There  the  substance  of  the  offense  is  stealing 
notes ;  here  the  substance  of  the  offense  is  having  in  possession  coun- 
terfeit bills  or  notes.  The  number  may  add  to  the  evidence  of  guilt, 
but  not  to  the  number  of  the  offenses.  In  an  action  for  the  penalty 
for  insuring  tickets  in  the  lottery,  where  ten  tickets  were  insured  at 
one  and  the  same  time,  Lord  Kenyon  held  that  but  one  penalty  could  be 
recovered.    Holland  q.  t.  v.  Duffin,  Peake's  Ca.  58. 

This  information  might  have  specified  each  note  which  the  prisoner 
had  in  his  possession,  as  was  done  in  several  cases  cited  in  King  v. 
Sutton,  Ca.  tern.  Hardw.  372.  Had  that  been  done,  it  would  hardly  be 
claimed  that  there  could  have  been  several  punishments.  The  offense, 
then,  is  one  and  the  same  offense. 

Another  objection  was  made  to  the  plea,  but  not  much  insisted  on, 
that,  if  this  is  the  same  offense,  it  is  not  pleaded  so  as  to  avail  the  de- 
fendant. The  plea  is  that  a  verdict  was  rendered,  and  judgment  now 
impends.  And  here  it  must  be  admitted  that  a  previous  acquittal,  con- 
viction, or  attainder  is  a  good  bar ;  but  what  shall  be  the  evidence  of 
such  conviction  is  the  inquiry. 

That  a  person  had  been  arraigned  for  the  same  offense  was  early 
held  to  be  no  bar  to  a  subsequent  indictment.  Withipole's  Case,  Cro. 
Car.  147.  Nor  that  a  nolle  prosequi  had  been  entered  by  the  attorney 
for  the  government.  Commonwealth  v.  Wheeler  et  al.,  2  Mass.  172.^^ 
Nor  that  the  jury  had  been  discharged,  at  the  request  of  the  prisoner. 
Rex  v.  Kinlock,  1  Wils.  157.  Nor  even  where  the  jury  have  been 
discharged  because  they  could  not  agree,  without  consent  of  the  pris- 
oner. State  V.  Woodruff,  2  Day,  504,  2  Am.  Dec.  122;  People  v. 
Olcott,  2  Johns.  Cas.  (N.  Y.)  301,  1  Am.  Dec.  168.-*'  Nor  can  the 
pendency  of  another  indictment  be  pleaded  in  abatement,  as  it  may 
in  a  case  of  a  prosecution  for  a  penalty.  Rex  v.  Stratton.  Doug.  240  ; 
Regina  v.  Goddard  et  al.,  2  Ld.  Raym.  930,  s.  c.  3  Salk.  171.  Nor  can 
a  conviction  or  an  acquittal  be  pleaded,  if  the  former  indictment  was 

19  Contra:  Where  the  nolle  prosequi  has  been  entered  after  the  jury  has 
been  impaneled.  Reynolds  v.  State,  3  Ga.  53'  (1847) ;  U,  S,  v.  Farring,  4 
Cranch,  C,  O.  465,  Fed.  Cas.  No.  15,075  (1834).  Unless  the  nolle  prosequi  was 
entered  because  the  indictment  was  insufficient  to  warrant  a  conviction. 
Walton  V.  State,  3  Sneed  (Tenn.)  687  (185C).  Or  because  of  a  material  vari- 
ance.   Martha  v.  State,  26  Ala.  72  (1855). 

"There  is,  in  point  of  law,  a  difference  between  the  plea  of  autrefois  con- 
vict, and  autrefois  attaint  of  the  same  offense.  The  former  may  be  whore 
there  has  been  no  judgment;  the  latter  is  founded  upon  a  judgment."  Story, 
J.,  in  U.  S.  V.  Gilbert,  2  Sumn.  40,  Fed.  Cas.  No.  15,204  (1834), 

-0  But  where  the  jury  was  discharf,'ed  without  the  consent  of  the  prisoner 
and  before  thoy  had  declared  themselves  unable  to  agree,  the  prisoner  was 
hold  to  have  been  in  jeopardy.  People  v.  Warden,  202  N.  Y.  138,  95  N.  E. 
729  (1911). 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  131 

not  sufficient  to  authorize  punishment,  if  a  conviction  had  ensued. 
King  V.  Taylor,  3  B.  &  C.  502 ;  4  Co.  45 ;  1  Chitt.  Cr.  L.  4G3.  And  it 
has  been  said  that  if  the  defendant  remains  after  conviction,  without 
requesting  judgment,  or  praying  for  clergy,  he  could  not  plead  such 
conviction  to  a  new  indictment.    2  Hale's  P.  C.  252 ;  Stark.  C.  L.  364. 

That  no  one,  however,  shall  be  put  in  jeopardy  twice  for  the  same 
oflfense,  is  a  universal  maxim  (4  Bla.  Comm.  321)),  thought  worthy  to 
be  incorporated,  to  a  certain  extent,  into  the  Constitution  of  the  United 
States.  And  that  an  acquittal  or  conviction,  by  a  court  having  juris- 
diction, on  a  sufficient  indictment  or  information,  is  in  all  cases  what- 
soever a  bar,  is  equally  clean  2  Hawk.  P.  C.  bk.  2,  c.  30,  §  1 ;  2  Leon. 
161.  Still  the  question  returns,  what  is  sufficient  evidence?  Is  it  the 
verdict,  or  the  verdict  and  judgment?  It  is  said  by  Chitty  that  there 
must  be  a  legal  acquittal  by  judgment  upon  trial,  by  verdict  of  a  petty 
jury,  or  by  battle.  1  Chitt.  C.  L.  457.  Tucker,  in  his  notes  to  Black- 
stone,  says  the  plea  must  state  the  indictment,  arraignment,  plea,  and 
judgment  legitimo  modo.  4  Bla.  Comm.  336,  by  Tucker.  And  in  the 
forms  of  pleading  a  judgment  is  set  out,  or  that  the  defendant  has  had 
his  clergy.  Stark.  C.  L.  352.  And  the  general  rule  certainly  is  that 
a  verdict  without  a  judgment  is  not  evidence,  as  it  may  be  arrested 
The  record  of  the  judgment,  therefore,  must  be  adduced,  to  exclude  a 
witness.  Swift's  Ev.  18;  1  Stark.  Ev.  183,  246;  2  Stark.  Ev.  716; 
Lee  V.  Gansel,  Cowp.  3 ;  Commonwealth  v.  Green,  17  Mass.  537.  So 
proof  of  conviction  of  the  principal,  on  the  trial  of  the  accessory,  must 
be  by  judgment  upon  a  verdict  or  confession,  or  by  outlawry.  4  Co. 
43;    Goff  v.  Byby  et  al.,  Cro.  Eliz.  540. 

On  the  other  hand,  it  is  said,  in  4  Bla.  Comm.  335,  that  when  one 
is  found  not  guilty,  on  an  indictment  or  other  prosecution,  he  may 
plead  such  acquittal  in  bar  of  any  subsequent  prosecution.  And  an 
acquittal  has  been  held  sufficient  to  entitle  bail  to  their  discharge  be- 
fore judgment  is  entered.  Rex  v.  Spenser,  1  Wils.  315.  And  in  the 
case  of  Queen  v.  Goddard,  2  Ld.  Raym.  921,  s.  c.  3  Salk.  172,  Holt, 
C.  J.,  says  that  another  indictment  pending  could  not  be  pleaded  in 
abatement,  even  after  the  accused  had  been  found  guilty  upon  it,  but 
it  must  be  pleaded  in  bar.  And  Judge  Dane,  after  citing  an  authority 
to  show  that  a  judgment  is  necessary,  makes  a  quaere;  for,  says  he, 
when  tl^e  defendant  has  once  stood  trial  for  his  life,  he  has  been  clearly 
once  in  jeopardy,  though  there  has  been  no  judgment  or  clergy.  6 
Dane's  Abr.  531.  And  in  Brooke's  Case,  4  Co.  40,  after  verdict  of 
guilty,  on  an  appeal  and  motion  in  arrest,  on  an  indictment  at  the  suit 
of  the  king,  it  was  claimed  that  the  defendant  could  not  be  charged 
again,  and  it  was  resolved  that,  "if  the  count  had  been  sufficient,  then 
being  convicted  at  the  suit  of  the  party,  he  should  not  be  again  con- 
victed at  the  suit  of  the  king;  and  the  same  principle  is  recognized,  in 
Vaux's  Case,  4  Co.  45.  1  Chitt.  C.  L.  462,  464,  et  seq.  Had  not  a 
verdict  been  sufficient,  it  is  not  easy  to  see  how  the  sufficiency  of  the 
count  came  to  be  considered.  And  in  Withipole's  Case,  Cro.  Car.  147, 
the  court  quashed  one  of  two  indictments,  lest  the  prisoner  should  be 


132  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

questioned  on  both.  And  in  Rex  v.  Kinlock,  1  Wils.  157,  Wright,  J., 
against  the  other  judges,  held  that  to  call  a  new  jury  would  be  to  put 
the  prisoner  twice  in  jeopardy,  although  the  former  jury  was  dis- 
charged at  his  request;  and  upon  report  thereof  the  prisoner  was 
pardoned. 

An  accessory  may  be  put  upon  trial  before  judgment  against  the 
principal,  but  cannot  be  sentenced  until  after  judgment  against  the 
principal,  as  in  the  recent  Case  of  Elsie  Whipple,  9  Cow.  (N.  Y.)  707. 
And  in  a  civil  case,  where  a  judgment  was  not  rendered,  but  a  verdict 
taken  before  a  justice  was  pleaded  in  bar,  it  was  held  a  valid  bar,  as 
the  justice  could  not  arrest  the  judgment  or  grant  a  new  trial.  Felter 
V.  Mulliner,  2  Johns.  181. 

When,  then,  we  consider  the  extreme  jealousy  which  the  common 
law  evinces  on  this  subject,  supported  by  the  provisions  of  the  Con- 
stitution ;  when  we  find  no  case  where  a  prosecution  has  been  sustained 
after  verdict  upon  a  different  count,  and  amidst  so  much  doubt  wheth- 
er the  legal  principle  as  to  the  necessity  of  a  judgment  has  been  ex- 
tended to  cases  of  this  kind;  when  we  further  find  that  both  these 
prosecutions  are  in  the  same  court,  and  no  claim  is  made  that  judg- 
ment cannot  be  rendered  upon  the  first  verdict — I  think  the  more  cor- 
rect rule  to  adopt  is  that  under  such  circumstances  a  second  informa- 
tion ought  not  to  be  supported,  although  judgment  had  not  been  actu- 
ally entered  upon  the  first  at  the  time  of  pleading. 

I  would,  therefore,  affirm  the  judgment  of  the  superior  court. 

The  other  Judges  were  of  the  same  opinion;   Peters,  J.,  doubting. 

Judgment  affirmed. 


CHAMPNEYS'  CASE. 

(York  Assizes,  1837.    2  Lew.  52.) 

The  prisoner,  Champneys,  was  indicted  as  principal  for  delivering  in 
a  false  schedule  to  the  Insolvent  Court,  and  the  others  for  aiding  and 
abetting  him.^^ 

Cottingham,  for  Champneys,  pleaded  ore  tenus  autrefois  acquit,  as 
to  a  part  of  the  goods  alleged  to  have  been  omitted  from  the  schedule. 
4c     *     * 

Sir  G.  A.  Lewin  replied,  that  a  man  might  well  be  acquitted  as  to 
some  articles  and  not  as  to  others,  and  that  it  was  obvious,  where 
fraud  was  intended,  that  concealment  as  to  some  might  precede  that 
of  others. 

Patteson,  J.  If  the  articles,  or  any  of  them,  are  different,  I  am 
bound  to  proceed;  but,  if  the  offense  should  turn  out  to  be  substan- 
tially the  same  as  that  the  prisoner  has  already  been  acquitted  of,  I 
shall  recommend  the  jury  to  acquit.  Whether  at  the  former  trial  the 
proper  evidence  was  adduced  before  the  jury  or  not  is  wholly  imma- 

21  Part  of  this  case  is  omitled. 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  133 

terial ;  for  if,  by  any  possible  evidence  tliat  could  have  been  adduced, 
he  could  have  been  convicted  on  that  indictment,  he  is  now  entitled 
to  an  acquittal. 


ROBERTS  V.  STATE. 

(Supreme  Court  of  Georgia,  1S53.     14  Ga.  8,  58  Am.  Dec.  ."28.) 

The  defendants,  with  others,  were  indicted  for  a  robbery  committed 
upon  John  Jackson,  of  said  county.  At  ]\Iarch  term,  1853,  they  filed  a 
plea  setting  forth  the  record  of  a  former  indictment  against  them  for 
burglary,  upon  which  they  had  been  tried  and  convicted,  and  which 
they  averred  to  be  the  same  felony,  and  none  other,  for  which  they 
were  now  indicted.  To  this  plea,  the  Solicitor  General  in  writing  de- 
murred, denying  its  sufficiency  in  law  to  operate  the  acquittal  of  the 
defendants.  Upon  consideration  of  such  demurrer,  the  plea  was  over- 
ruled by  the  court,  and  the  defendants  required  to  answer  over.^^ 

«       4t       :1c 

Starnes,  J.,  delivered  the  opinion.    *    *    ♦ 

The  main  fact  stated,  and  on  which  the  plea  rested,  was  that  the 
defendants  had  been  previously  convicted  on  the  charge  of  burglary, 
that  judgment  had  been  rendered  on  said  conviction,  and  that  the  fel- 
ony of  which  they  had  been  so  convicted  was  one  and  the  same  with 
the  felony  of  which  they  then  stood  accused.  Of  course,  the  Solicitor, 
by  so  demurring,  and  admitting  that  this  'charge  of  robbery  was  the 
same  felony  as  that  of  which  the  defendants  had  been  convicted,  in- 
tended only  to  admit  that  the  two  indictments  related  to  the  same 
transaction,  and  did  not  mean  to  admit  that  the  charge  was  the  same 
in  each  case.  Taking  this,  then,  as  true,  it  becomes  our  duty  to  make 
the  following  inquiry:  When  a  prisoner  has  been  indicted  for  having 
burglariously  broken  and  entered  the  dwelling  of  another  with  intent 
to  steal  the  goods  and  chattels  of  the  owner,  and,  in  order  to  manifest 
such  intent  on  the  trial,  proof  be  adduced  that  the  prisoner  did  vio- 
lently, or  by  intimidation  from  the  person  of  the  owner,  steal  such 
goods  and  chattels,  and  he  be  convicted,  and  afterwards  an  indictment 
for  the  robbery  committed  at  the  time  be  found  against  him,  can  he 
then  be  tried,  if  he  plead  autrefois  convict,  for  such  robbery  as  a  sep- 
arate" offense? 

The  case  made  by  this  record  invokes  an  answer  from  us  to  this 
question.  The  record,  it  is  true,  does  not  show  that,  upon  the  trial 
of  these  defendants  for  the  burglary,  that  part  of  the  evidence  which 

2  2  Parts  of  the  statement  and  opinion  are  omitted. 

"An  acquittal  of  the  charge  of  larceny  of  certain  goods  is  not  a  bar  to  an 
Indictment  for  the  larceny  of  certain  other  goods,  although  the  last-men- 
tioned goods  are  of  such  a  character  that  the  language  of  the  first  indictment 
niiL'-ht  describe  them."  Per  Curiam,  in  Commonwealth  v.  Sutherland,  109 
Mass.  343  (1872). 


134  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

was  relied  upon  to  show  the  felonious  intent  was  the  same  with  that 
which  was  offered  upon  the  trial  for  robbery ;  but  this  is  in  effect  ad- 
mitted by  the  demurrer  to  the  plea,  as  we  have  shown,  and  thus  the 
question  presented  arises. 

Of  the  sufficiency  of  the  plea  of  former  acquittal  or  conviction,  the 
following  is  said  to  be  a  true  test,  viz. :  Whenever  the  prisoner  might 
have  been  convicted  on  the  first  indictment,  by  the  evidence  necessary 
to  support  the  second ;  or,  in  other  words,  where  the  evidence  neces- 
sary to  support  the  second  indictment  would  have  sustained  the  first. 
Arch.  C.  P.  106 ;  Rex  v.  Clark,  1  B.  &  B.  473 ;  People  v.  Barrett,  1 
Johns.  (N.  Y.)  66;  Com.  v.  Cunningham,  13  Mass.  245 ;  Hite  v.  State, 
9  Yerg.  357;  People  v.  McGowan,  17  Wend.  386;  State  v.  Risher, 
1  Rich.  Law,  222 ;  Durham  v.  People,  4  Scamm.  172 ;  Com.  v.  Wade, 
17  Pick.  400 ;  2  Hawks,  98. 

This  may  be  said  to  be  the  case  in  all  compound  felonies.  1  Ross  on 
C.  89,  note. 

There  seems  to  be  some  difficulty  in  applying  this  rule  (as  above 
expressed)  in  all  cases.  It  may  be  said  that  the  prisoner  could  not 
have  been  convicted  on  the  indictment  for  burglary,  by  the  proof  nec- 
essary to  convict  on  the  indictment  for  robbery ;  and  the  evidence  nec- 
essary to  support  the  indictment  for  robbery  would  not  have  insured 
a  conviction  on  the  prosecution  for  burglary.  If  the  indictment  for 
robbery,  however,  had  been  first  tried,  then,  upon  the  trial  of  the 
burglary,  the  proof  necessary  to  support  that  last  trial  would  have  been 
such  as  would  have  been  sufficient  to  sustain  the  first  prosecution,  be- 
cause, after  proof  of  the  breaking  and  entering  by  the  prisoner,  the 
state  would  have  proceeded  to  prove  the  violent  stealing  from  the 
prosecutor,  in  order  to  show  the  breaking,  etc.,  with  felonious  intent ; 
and  this  would  have  been  proof  of  the  robbery. 

To  avoid  any  confusion  on  this  subject,  we  adopt  the  rule  as  it  is 
otherwise  more  generally,  and  perhaps  more  accurately,  expressed, 
viz.,  that  the  plea  of  autrefois  acquit  or  convict  is  sufficient,  whenever 
the  proof  shows  the  second  case  to  be  the  same  transaction  with  the 
first.  Fiddler  v.  State,  7  Humph.  (Tenn.)  508;  Thach.  206,  207. 
That  rule  is  decisive  of  this  case.    ♦    *    * 

The  rule  above  stated  by  me  is  that  which  is  prescribed  for  this 
case,  and  it  must  be  the  law  for  these  defendants. 

This  record  shows  that  the  transaction  referred  to  in  the  indictment 
for  burglary  is  the  same  with  that  in  the  prosecution  for  robbery,  in- 
asmuch as  the  pleader,  in  order  to  show  the  felonious  intent,  has  made 
it  necessary  in  the  former  to  prove  the  circumstances  of  the  stealing, 
and  thus  to  involve  the  same  transaction  (the  robbery)  in  both  cases. 
If  the  pleader  had  alleged  the  breaking  with  felonious  intent  (which 
constitutes  burglary),  and  had  been  able  to  prove,  otherwise  than  by 
proof  of  the  robbery,  that  the  felonious  intent  was  manifested,  then  the 
two  m,ight  not  have  constituted  the  same  transaction.  But  this  was 
settled  by  the  demurrer;    and  the  state's  counsel,  having  elected  to 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  135 

make  his  proof  of  felonious  intent  in  this  way,  has  put  his  case  within 
the  apphcation  of  the  rule. 

In  passing  sentence  upon  these  defendants,  after  the  conviction  in 
the  case  of  burglary,  the  court  no  doubt  gradrated  the  penalty  accord- 
ing to  the  circumstances  of  the  transaction,  thus  taking  into  considera- 
tion the  proof  of  the  robbery ;  for  it  is  to  be  presumed  that  a  break- 
ing and  entering  of  a  dwelling  house,  accompanied  by  an  actual  rob- 
bery, would  have  been  more  severely  punished  than  a  breaking  and 
entering  with  an  intent  to  rob  which  was  not  consummated.  If  this 
be  so,  and  the  defendants  have  been  held  to  some  degree  of  punish- 
ment in  consideration  of  the  robbery,  to  try  them  again  for  it  would 
be,  as  it  were,  to  place  them  in  jeopardy  a  second  time  on  account 
of  the  same  offense,  thus  in  some  sort  violating  the  fundamental  prin- 
ciple on  which  the  plea  of  autrefois  acquit  and  convict  rests.  Hence, 
again,  the  propriety  of  the  rule  which  we  recognize  and  apply. 

On  this  ground,  we  reverse  the  judgment  of  the  court.    *    *  * 


STATE  V.  ROSENBAUM. 

(Appellate  Court  of  Indiana,  1899.     23  Ind.  App.  236,  55  N.  E.  110,  77  Am. 

St.  Rep.  432.) 

Robinson,  J,  Appellee  was  indicted  for  permitting  a  person  named 
to  be  and  remain  in  his  place  of  business  during  prohibited  hours,  con- 
trary to  the  provisions  of  section  3  of  the  act  of  March  11,  1895  (Acts 
1895,  p.  248).  Appellee  pleaded  in  abatement,  setting  up  a  former  in- 
dictment and  acquittal,  that  the  person  named  in  the  present  indictment 
as  having  been  in  the  saloon  was  in  company  with  the  person  named  in 
the  former  indictment,  and  that  the  acts  complained  of  in  the  present 
indictment  are  identical  with  those  complained  of  in  the  former  in- 
dictment, of  which  he  had  been  acquitted.  A  demurrer  to  this  plea 
was  overruled,  and  upon  this  ruling  the  appeal  is  based. 

The  question  presented  is,  can  the  proprietor  of  a  place  where  liq- 
uors are  sold,  who  permits  two  or  more  persons  at  the  same  time  to 
be  in  the  room  during  prohibited  hours,  be  prosecuted  for  a  separate 
offense  as  to  each  of  such  persons?  The  Attorney  General,  in  his 
brief,  states  that  he  is  of  the  opinion  that  the  question  must  be  answer- 
ed in  the  negative.  In  Smith  v.  State,  85  Ind.  553,  the  court  said: 
"The  true  test  to  determine  the  sufficiency  or  insufficiency  of  a  plea 
of  former  acquittal  as  a  bar  to  the  pending  prosecution  is  this :  Would 
the  same  evidence  be  necessary  to  secure  a  conviction  in  the  pending, 
as  in  the  former,  prosecution?  If  it  would,  then  the  plea  of  former 
acquittal  would  be  a  complete  bar  to  the  pending  prosecution ;  other- 
wise, the  plea  would  not  be  sufficient."  The  case  of  State  v.  Elder, 
65  Ind.  282,  32  Am.  Rep.  69,  states  the  following  rule:  "When  the 
facts  constitute  but  one  offense,  though  it  may  be  susceptible  of  divi- 
sion into  parts,  as  in  larceny  for  stealing  several  articles  of  property 


L36  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

at  the  same  time,  belonging  to  the  same  person,  a  prosecution  to  final 
judgment  for  stealing  a  part  of  the  articles  will  be  a  bar  to  a  subse- 
quent prosecution  for  stealing  any  other  part  of  the  articles  stolen  by 
the  same  act."  See,  also,  State  v.  Gapen,  17  Ind.  App.  524,  45  N.  E 
678,  and  47  N.  E.  25 ;  Davidson  v.  State,  99  Ind.  366 ;  Fritz  v.  State, 
40  Ind.  18 ;  Wininger  v.  State,  13  Ind.  540 ;  Brinkman  v.  State,  57 
Ind.  76.  The  statute  makes  it  unlawful  for  the  proprietor  to  permit 
"any  person  or  persons  other  than  himself  and  family"  to  go  into  the 
room  at  prohibited  times. 

In  the  case  at  bar  the  crime  committed  was  permitting  "persons 
other  than  himself  to  go  into  such  room"  during  prohibited  hours.  It 
was  a  single  offense,  which  cannot  be  split  up  and  prosecuted  in  parts. 
"A  prosecution  for  any  part  of  a  single  crime  bars  further  prosecu- 
tion based  upon  the  whole  or  a  part  of  the  same  crime."  Laupher  v. 
State,  14  Ind.  327.    The  appeal  is  not  sustained.^^ 


MOREY  V.  COMMONWEALTH. 
(Supreme  Judicial  Court  of  Massachusetts,  1871.    lOS  Mass.  433.) 

Writ  of  error  to  reverse  the  judgment  of  the  superior  court  upon  a 
conviction  of  the  plaintiff  in  error  on  an  indictment  for  adultery.  Plea, 
in  nullo  est  erratum. 

The  record  showed  that  at  September  term,  1867,  of  the  superior 
court  in  Norfolk,  two  indictments  were  found  against  the  plaintiff  in 
error,  the  first  for  lewd  and  lascivious  cohabitation,  and  the  second 
for  adultery.  The  first  indictment  charged  that  he  and  Bridget  Ken- 
nedy, on  October  1,  1866,  and  "from  that  day  continually  to"  August 
1,  1867,  at  Quincy,  "did  lewdly  and  lasciviously  associate  and  cohabit 
together,"  they  "not  being  then  and  there  married  to  each  other."  The 
second  charged,  in  three  counts,  that  on  January  1,  June  1,  and  August 
1,  1867,  respectively,  at  Quincy,  he  committed  adultery  with  Bridget 
Kennedy,  he  "being  then  and  there  a  married  man  and  then  and  there 
having  a  lawful  wife  alive  other  than  the  said  Bridget  Kennedy,"  and 
he  and  said  Bridget  "not  being  then  and  there  lawfully  married  to 
each  other." 

The  record  further  showed  that  at  said  term,  he  and  Bridget  Ken- 
nedy were  tried  together  on  the  first  indictment,  and  found  guilty,  and 
he  was  sentenced  thereon  to  confinement  at  hard  labor  in  the  House 
of  Correction  for  two  years,  and  that  at  the  same  term  he  was  tried 
and  found  guilty  on  the  second  indictment,  and  sentenced  thereon  to 
confinement  at  hard  labor  in  the  House  of  Correction  for  three  years, 

2  3  See,  also,  Ball  v.  State,  67  Miss.  358,  7  South.  353  (1SS9) ;  State  v.  Ross, 
4  Lea  (Tenn.)  442  (1880) ;    Irvin  v.  State,  7  Tex.  App.  78  (1879). 

A  statute  providing  for  an  increased  penalty  for  a  second  conviction  for 
crime  is  not  invalid,  as  putting  the  offender  twice  in  jeopardy  for  the  same 
offense.    State  v.  Le  Pitre,  54  Wash.  166,  103  Pac.  27,  18  Ann.  Cas.  922  (1909). 


Ch.  10)  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  137 

"this  sentence  to  take  effect  from  and  after  the  expiration  of  his  pre- 
vious sentence  at  this  term  of  the  court." 

The  assignment  of  errors  was  that  the  sentence  on  the  second  in- 
dictment was  wrongful,  in  that  the  plaintiff  in  error  "had  been  previ- 
ously convicted  and  sentenced  to  two  years'  confinement  in  said  House 
of  Correction  for  the  same  acts  for  which  this  sentence  was  awarded." 

H.  L.  Hazelton,  for  the  plaintiff  in  error.  C.  Allen,  Attorney  Gen- 
eral, for  the  Commonwealth. 

Gray,  J.  A  conviction  or  acquittal  upon  one  indictment  is  no  bar 
to  a  subsequent  conviction  and  sentence  upon  another,  unless  the  evi- 
dence required  to  support  a  conviction  upon  one  of  them  would  have 
been  sufficient  to  warrant  a  conviction  upon  the  other.  The  test  is 
not  whether  the  defendant  has  already  been  tried  for  the  same  act, 
but  whether  he  has  been  put  in  jeopardy  for  the  same  offense.  A 
single  act  may  be  an  offense  against  two  statutes ;  and  if  each  statute 
requires  proof  of  an  additional  fact  which  the  other  does  not,  an  ac- 
quittal or  conviction  under  either  statute  does  not  exempt  the  de- 
fendant from  prosecution  and  punishment  under  the  other. 

An  acquittal  or  conviction  upon  an  indictment  for  murder  is  a  bar 
to  a  subsequent  conviction  upon  an  indictment  for  manslaughter  or  as- 
sault by  the  same  act  by  which  the  murder  was  charged  in  the  first 
indictment  to  have  been  committed,  because  such  a  conviction  might 
have  been  had  upon  the  first  indictment.  And  so,  e  converso,  an  ac- 
quittal or  conviction  of  the  manslaughter  is  a  bar  to  a  subsequent  in- 
dictment for  the  murder.  Commonwealth  v.  Roby,  12  Pick.  496,  504, 
505,  and  authorities  cited;  1  Stark.  Crim.  PI.  (2d  Ed.)  323,  324;  ?■ 
Russell  on  Crimes  (4th  Ed.)  55-59 ;  Rev.  St.  c.  137,  §  11 ;  Gen.  St. 
c.  172,  §  16 ;  Commonwealth  v.  Drum,  19  Pick.  479 ;  Commonwealth 
V.  Squire,  1  Mete.  258,  262 ;  Commonwealth  v.  Lang,  10  Gray,  11 ; 
Commonwealth  v.  Squires,  97  Mass.  59. 

On  the  other  hand,  a  conviction  of  an  assault  with  intent  to  mur- 
der was  held  by  this  court  to  be  no  bar  to  an  indictment  for  murder, 
before  our  statutes  permitted  a  conviction  of  such  an  assault  upon  an 
indictment  for  murder.  Commonwealth  v.  Roby,  12  Pick.  496 ;  St. 
1805,  c.  88,  §  2;  Rev.  St.  c.  137,  §  11,  and  commissioners'  note;  Gen. 
St.  c.  172,  §  16. 

A  conviction  of  being  a  common  seller  of  intoxicating  liquors  has 
been- held  to  bar  a  prosecution  for  a  single  sale  of  such  liquors  within 
the  same  time,  upon  the  ground  that  the  lesser  offense,  which  is  fully 
proved  by  evidence  of  the  mere  fact  of  unlawfully  making  a  sale,  is 
merged  in  the  greater  offense ;  but  an  acquittal  of  the  offense  of  be- 
ing a  common  seller  does  not  have  the  like  effect.  Commonwealth  v. 
Jenks,  1  Gray,  490,  492;  Commonwealth  v.  Hudson,  14  Gray,  11; 
Commonwealth  v.  Mead,  10  Allen,  396. 

It  has  also  been  repeatedly  held  that  the  offenses  of  keeping  a  tene- 
ment used  for  the  illegal  sale  and  illegal  keeping  of  intoxicating  liquors, 
of  illegally  selling  such  Hquors,  and  of  doing  secular  business  on  the 


138  ARRAIGNMENT,  PLEAS,  AND    MOTIONS  (Ch.  10 

Lord's  day,  are  distinct  offenses,  and  a  conviction  of  the  one  is  no  bar 
to  a  conviction  of  either  of  the  others,  although  the  same  acts  of  sale 
are  relied  on  in  proof  of  each.  Commonwealth  v.  Bubser,  14  Gray, 
83 ;  Commonwealth  v.  Shea,  14  Gray,  386 ;  Commonwealth  v.  Cutler, 
9  Allen,  486;  Commonwealth  v.  O'Donnell,  8  Allen,  548;  Common- 
wealth V.  Trickey,  13  Allen,  559;  Commonwealth  v.  Hogan,  97  Mass. 
122 ;   Commonwealth  v.  Sheehan,  105  Mass.  192. 

The  case  now  before  us  cannot  be  distinguished  in  principle  from 
those  jusf  cited.  The  indictment  for  lewd  and  lascivious  cohabitation 
contained  no  averment  and  required  no  proof  that  either  of  the  parties 
was  married,  but  did  require  proof  that  they  dwelt  or  lived  together, 
and  would  not  be  supported  by  proof  of  a  single  secret  act  of  unlaw- 
ful intercourse.  Commonwealth  v.  Calef,  10  Mass.  153.  The  indict- 
ment for  adultery  alleged  and  required  proof  that  the  plaintiff  in  er- 
ror was  married  to  another  woman,  and  would  be  satisfied  by  proof 
of  that  fact  and  of  a  single  act  of  unlawful  intercourse.  Proof  of  un- 
lawful intercourse  was  indeed  necessary  to  support  such  indictment. 
But  the  plaintiff  in  error  could  not  have  been  convicted  upon  the  first 
indictment  by  proof  of  such  intercourse  and  of  his  marriage,  without 
proof  of  continuous  unlawful  cohabitation ;  nor  upon  the  second  in- 
dictment by  proof  of  such  cohabitation,  without  proof  of  his  marriage. 
Full  proof  of  the  offense  charged  in  either  indictment  would  not,  there- 
fore, of  itself  have  warranted  any  conviction  upon  the  other.  The 
necessary  consequence  is  that,  assuming  that  proof  of  the  same  act  or 
acts  of  unlawful  intercourse  was  introduced  on  the  trial  of  both  in- 
dictments, the  conviction  upon  the  first  indictment  was  no  bar  to  a 
conviction  and  sentence  upon  the  second,  and  that  there  is  no  error  in 
the  judgment  for  which  it  can  be  reversed. 

The  question  of  the  justice  of  punishing  the  offender  for  two  dis- 
tinct oft'enses  growing  out  of  the  same  act  was  a  matter  for  the  con- 
sideration of  the  grand  jury  and  the  attorney  for  the  commonwealth 
in  the  presentment  and  prosecution,  of  the  court  below  in  imposing 
sentence,  or  of  the  executive  in  the  exercise  of  the  pardoning  power. 
It  is  not  within  the  jurisdiction  of  this  court  as  a  court  of  error. 

Judgment  affirmed. 


Ch.  11)  PRESENCE    OF   THE    DEFENDANT   AT   THE   TRIAL  139 

CHAPTER  XI 
PRESENCE  OF  THE  DEFENDANT  AT  THE  TRIAL 


When  any  felons  appear  in  judgment  to  answer  of  their  teiony,  our 
will  is  that  they  come  barefooted,  ungirt,  uncoifed,  and  bareheaded, 
in  their  coat  only,  without  irons  or  any  kind  of  bonds,  so  that  they 
may  not  be  deprived  of  reason  by  pain,  nor  be  constrained  to  answer 
by  force,  but  of  their  own  free  will ;  and  then,  agreeably  to  the  pre- 
sentment against  them,  let  them  be  indicted. 

Britton  (Nichols-Baldwin)  29. 


REG.  V.  TEMPLEMAN. 
(Court  of  Queen's  Bench,  1702.     1  Salk.  55.) 

Upon  a  motion  to  submit  to  a  small  fine,  after  a  confession  of  the 
indictment  which  was  for  an  assault.     *     *     *  i 

Defendants  may  submit  to  a  fine,  though  absent,  if  they  have  a  clerk 
in  Court  that  will  undertake  for  the  fine.  Hil.  2  Anne,  Hickeringil's 
Case  was,  that  he  and  his  daughter  were  indicted  for  a  trespass,  and 
Hickeringil  only  appeared  on  the  motion  to  submit  to  a  small  fine.  But 
where  a  man  is  to  receive  any  corporal  punishment,  judgment  can- 
not be  given  against  him  in  his  absence,  for  there  is  a  capias  pro  fine ; 
but  no  process  to  take  a  man  and  put  him  on  the  pillory.  Vide  tit. 
Judgments,  Duke's  Case.* 


HOPT  V.  PEOPLE  OE  THE  TERRITORY  OF  UTAH. 

{Supreme  Court  of  the  United  States.   1SS3.     110  U.   S.  574,  4  Sup.  Ct  202. 

28  L.  Ed.  262.) 

Harlan,  J.»  The  plaintiff  in  error  and  one  Emerson  were  jointly 
indicted  in  a  court  of  Utah  for  the  murder,  in  the  first  degree,  of  John 
F.  Turner.  Each  defendant  demanded  a  separate  trial,  and  pleaded 
not  guilty.  Hopt,  being  found  guilty,  was  sentenced  to  suffer  death. 
The  judgment  was  affirmed  by  the  Supreme  Court  of  the  territory. 
But,  upon  writ  of  error  in  this  court,  that  judgment  was  reversed,  and 
the  case  remanded,  with  instructions  to  order  a  new  trial.    104  U.  S. 

1  Part  of  this  case  is  omitted. 

2  "This  was,  however,  not  of  course,  but  only  in  the  discretion  of  the 
court."     Rex  v.  Harwood,  2  Str.  108S  (172S). 

3  Part  of  this  case  is  omitted. 


140  PRESENCE    OF   THE    DEFENDANT   AT   THE    TRIAL  (Ch.  11 

631,  26  L.  Ed.  873.  Upon  the  next  trial,  the  defendant  being  found 
guilty,  was  again  sentenced  to  suffer  death.  That  judgment  was  af- 
firmed by  the  Supreme  Court  of  the  territory.  We  are  now  required 
to  determine  whether  the  court  of  original  jurisdiction  in  its  conduct 
of  the  last  trial  committed  any  error  to  the  prejudice  of  the  substantial 
rights  of  the  defendant. 

1.  The  validity  of  the  judgment  is  questioned  upon  the  ground  that 
a  part  of  the  proceedings  in  the  trial  court  were  conducted  in  the  ab- 
sence of  the  defendant.  Cr.  Code  Proc.  Utah,  §  218,  provides  that  "if 
the  indictment  is  for  a  felony  the  defendant  must  be  personally  present 
at  the  trial ;  but  if  for  a  misdemeanor  the  trial  may  be  had  in  the  ab- 
sence of  the  defendant;  if,  however,  his  presence  is  necessary  for  the 
purpose  of  identification,  the  court  may,  upon  application  of  the  pros- 
ecuting attorney,  by  an  order  or  warrant,  require  the  personal  at- 
tendance of  the  defendant  at  the  trial."     *     *     * 

It  appears  that  six  jurors  were  separately  challenged  by  the  defend- 
ant for  actual  bias.  The  grounds  of  challenge  in  each  case  were  de- 
nied by  the  district  attorney.  For  each  juror  triers  were  appointed, 
who,  being  duly  sworn,  were,  "before  proceeding  to  try  the  challenge," 
instructed  as  required  by  section  2,52  of , the  Criminal  Code;  after 
which,  in  each  case,  the  triers  took  the  juror  from  the  courtroom  into- 
a  different  room  and  tried  the  grounds  of  challenge  out  of  the  pres- 
ence as  well  of  the  court  as  of  the  defendant  and  his  counsel.  Their 
findings  were  returned  into  court,  and  the  challenge,  being  found  not 
true,  the  jurors  so  challenged  resumed  their  seats  among  those  sum- 
moned to  try  the  case.  Of  the  six  challenged  for  actual  bias,  four 
were  subsequently  challenged  by  the  defendant  peremptorily.  The 
other  two  were  sworn  as  trial  jurors,  one  of  them,  however,  after  the 
defendant  had  exhausted  all  his  peremptory  challenges.  No  objection 
was  made  to  the  triers  leaving  the  courtroom,  nor  was  any  exception 
taken  thereto  during  the  trial.  The  jurors  proposed  were  examined  by 
the  triers,  without  any  testimony  being  offered  or  produced,  either  by 
the  prosecution  or  the  defense. 

It  is  insisted,  in  behalf  of  the  defendant,  that  the  action  of  the  court 
in  permitting  the  trial  in  his  absence  of  these  challenges  of  jurors  was 
so  irregular  as  to  vitiate  all  the  subsequent  proceedings.  This  point  is 
well  taken.  The  Criminal  Code  of  Utah  does  not  authorize  the  trial  by 
triers  of  grounds  of  challenges  to  be  had  apart  from  the  court,  and  in 
the  absence  of  the  defendant.  The  specific  provision  made  for  the  ex- 
amination of  witnesses  "on  either  side,"  subject  to  the  rules  of  evi- 
dence applicable  to  the  trial  of  other  issues,  shows  that  the  prosecuting 
attorney  and  the  defendant  were  entitled  of  right  to  be  present  during 
the  examination  by  the  triers.  It  certainly  was  not  contemplated  that 
witnesses  should  be  sent  or  brought  before  the  triers  without  the  party 
producing  them  having  the  privilege,  under  the  supervision  of  the  court, 
of  propounding  such  questions  as  would  elicit  the  necessary  facts,  or 
without  an  opportunity  to  the  opposite  side  for  cross-examination. 


Ch.  11)  PRESENCE    OF   THE    DEFENDANT   AT   THE    TRIAL  141 

These  views  find  some  support  in  the  further  provision  making-  it  the 
duty  of  the  court  "when  the  evidence  is  concluded,"  and  before  the 
triers  make  a  finding,  to  instruct  them  as  to  their  duties.  In  the  case 
before  us  the  instructions  to  the  triers  were  given  before  the  latter  pro- 
ceeded with  the  trial  of  the  challenges.  But  all  doubt  upon  the  sub- 
ject is  removed  by  the  express  requirement,  not  that  the  defendant 
may,  but,  where  the  indictment  is  for  a  felony,  must  be,  "personally 
present  at  the  trial." 

The  argument  in  behalf  of  the  government  is  that  the  trial  of  the  in- 
dictment began  after,  and  not  before,  the  jury  was  sworn;  conse- 
quently that  the  defendant's  personal  presence  was  not  required  at  an 
earlier  stage  of  the  proceedings.  Some  warrant,  it  is  supposed  by  coun- 
sel, is  found  for  this  position  in  decisions  construing  particular  statutes 
in  W'hich  the  word  "trial"  is  used.  Without  stopping  to  distinguish 
those  cases  from  the  one  before  us,  or  to  examine  the  grounds  upon 
which  they  are  placed,  it  is  sufficient  to  say  that  the  pufpose  of  the 
foregoing  provisions  of  the  Utah  Criminal  Code  is,  in  prosecutions 
for  felonies,  to  prevent  any  steps  being  taken  in  the  absence  of  the 
accused,  and  after  the  case  is  called  for  trial,  which  involves  his  sub- 
stantial rights.  The  requirement  is  not  that  he  must  be  personally 
present  at  the  trial  by  the  jury,  but  "at  the  trial."  The  Code,  we  have 
seen,  prescribes  grounds  for  challenge  by  either  party  of  jurors  pro- 
posed. And  provision  is  expressly  made  for  the  "trial"  of  such  chal- 
lenges, some  by  the  court,  others  by  triers.  The  prisoner  is  entitled 
to  an  impartial  jury  composed  of  persons  not  disqualified  by  statute, 
and  his  life  or  liberty  may  depend  upon  the  aid  which,  by  his  personal 
presence,  he  may  give  to  counsel  and  to  the  court  and  triers,  in  the 
selection  of  jurors.  The  necessities  of  the  defense  may  not  be  met  by 
the  presence  of  his  counsel  only.  For  every  purpose,  therefore,  in- 
volved in  the  requirement  that  the  defendant  shall  be  personally  present 
at  the  trial,  where  the  indictment  is  for  a  felony,  the  trial  commences 
at  least  from  the  time  when  the  work  of  impaneling  the  jury  begins. 

But  it  is  said  that  the  right  of  the  accused  to  be  present  before  the 
triers  was  waived  by  his  failure  to  object  to  their  retirement  from  the 
courtroom,  or  to  their  trial  of  the  several  challenges  in  his  absence.  We 
are  of  opinion  that  it  was  not  within  the  power  of  the  accused  or  his 
counsel  to  dispense  with  statutory  requirements  as  to  his  personal  pres- 
ence at  the  trial.  The  argument  to  the  contrary  necessarily  proceeds 
upon  the  ground  that  he  alone  is  concerned  as  to  the  mode  by  which  he 
may  be  deprived  of  his  life  or  liberty,  and  that  the  chief  object  of  the 
prosecution  is  to  punish  him  for  the  crime  charged.  But  this  is  a  mis- 
taken view  as  well  of  the  relations  which  the  accused  holds  to  the  pub- 
lic as  of  the  end  of  human  punishment.  The  natural  life,  says  Black- 
stone,  "cannot  legally  be  disposed  of  or  destroyed  by  any  individual,  nei- 
ther by  the  person  himself,  nor  by  any  other  of  his  fellow  creatures 
merely  upon  their  own  authority."  1  Bl.  Comm.  133.  The  public  has 
an  interest  in  his  life  and  liberty.    Neither  can  be  lawfully  taken  except 


142  PRESENCE    OF    THE    DEFENDANT   AT   THE   TRIAL  (Ch.  11 

in  the  mode  prescribed  by  law.  That  which  the  law  makes  essential  in 
proceeding's  involving  the  deprivation  of  life  or  liberty  cannot  be  dis- 
pensed with,  or  affected  by  the  consent  of  the  accused,  much  less  by  his 
mere  failure,  when  on  trial  and  in  custody,  to  object  to  unauthorized 
methods.  The  great  end  of  punishment  is  not  the  expiation  or  atone- 
ment of  the  offense  committed,  but  the  prevention  of  future  offenses 
of  the  same  kind.  4  Bl.  Comm.  11.  Such  being  the  relation  which  the 
citizen  holds  to  the  public,  and  the  object  of  punishment  for  public 
wrongs,  the  Legislature  has  deemed  it  essential  to  the  protection  of 
one  whose  life  or  liberty  is  involved  in  a  prosecution  for  felony  that 
he  shall  be  personally  present  at  the  trial ;  that  is,  at  every  stage  of 
the  trial  when  his  substantial  rights  may  be  affected  by  the  proceed- 
ings against  him.  If  he  be  deprived  of  his  life  or  liberty  without  be- 
ing so  present,  such  deprivation  would  be  without  that  due  process  of 
law  required  by  the  Constitution.  For  these  reasons  we  are  of  opinion 
that  it  was  error,  which  vitiated  the  verdict  and  judgment,  to  permit 
the  trial  of  the  challenges  to  take  place  in  the  absence  of  the  accused. 

Judgment  reversed.* 


ADAAIS  V.  STATE. 
(Supreme  Court  of  Florida,  ISOl.     2S  Fla.  511,  10  South.  lOG.) 

Mabry,  J.«  William  Adams,  the  plaintiff  in  error,  Ike  Spanish 
and  T.  P.  Bethea,  were  jointly  indicted  on  the  26th  day  of  February, 
A.  D.  1891,  at  a  term  of  the  circuit  court  for  Columbia  county,  Fla., 
for  the  murder  of  James  Moore.    *    *    * 

The  Dill  of  exceptions  shows  that  an  objection  was  made  by  the 
counsel  for  the  accused  to  the  competency  of  Ike  Spanish  as  a  witness 
for  the  state,  and  pending  the  discussion  of  this  question  before  the 
court  the  jury  was  sent  from  the  courtroom.  The  officers  who  had 
the  custody  of  the  defendant,  Adams,  through  mistake  took  him  also 
from  the  courtroom,  and  carried  him  to  jail.  Counsel  for  the  defend- 
ant then  proceeded  to  discuss  before  the  court  the  competency  of  Ike 
Spanish  as  a  witness,  and  had  proceeded  about  10  minutes  with  the 
discussion  in  the  absence  of  the  prisoner,  when  his  presence  was 
missed.  The  state's  attorney  called  the  attention  of  the  court  to  the 
absence  of  the  prisoner,  and  thereupon  the  court  requested  the  counsel 
for  defendant  to  suspend  his  argument,  which  he  did,  at  the  same  time 

*  The  principle  of  this  case  has  been  applied  in  many  jurisdictions  to 
trials  for  felony.  State  v.  Smith,  90  Mo.  ,37,  1  S.  W.  7."')3.  .59  Am.  Rep.  4 
(ISSG);  People  v.  Beauchamp.  49  Cal.  41  (1874).  The  weight  of  authority, 
however,  allows  the  accused  to  waive  his  right  to  he  present  during  a  trial 
for  felonies  not  capital.  State  v.  Kelly,  97  N.  C.  401.  2  S.  E.  IS.'),  2  Am.  St, 
Rep.  299  (1887)  ;  Commonwoalth  v.  ]McCarthy,  1G3  Mass.  4.")8,  40  N.  E.  7(50 
(1895);  Price  v.  Slate,  3G  Miss.  531,  72  Am.  Dec.  195  (1S58;.  Cf.  L^ncU  V. 
State,  88  Pa.  189,  32  Am.  Kcp.  445  (1878). 

^  Part  of  this  case  is  omitted. 


Ch.  11)  PRESENCE    OF   THE    DEFENDANT    AT    THE   TRIAL  li'S 

excepting  to  the  removal  of  the  prisoner  from  the  courtroom  without 
his  consent,  and  of  his  being  deprived  of  a  right  guarantied  by  the  Con- 
stitution. 

On  the  return  bf  the  prisoner  to  the  courtroom  the  judge  requested 
his  attorney,  in  order  to  save  any  difiiculty  that  might  arise  by  reason 
of  the  inadvertence,  to  commence  anew  his  argument,  and  that  the 
court  would  hear  his  views  and  authorities  anew.  Defendant,  by  his 
counsel,  declined  to  say  anything  further,  but  insisted  that  his  objec- 
tion to  taking  the  accused  from  the  courtroom  be  noted.  Without  anv 
argument  further,  either  from  defendant  or  the  state,  the  court  decided 
that  the  witness  was  competent  to  testify  against  the  accused.  It  was 
early  decided  in  this  state,  and  has  been  rigidly  adhered  to  in  later 
decisions,  that  the  prisoner  has  the  right  to  be  and  in  fact  must  be 
present  during  the  trial  of  a  capital  case,  and  no  steps  can  be  taken 
by  the  court  in  his  absence.  Helton  v.  State,  2  Fla.  476,  500  ;  Gladden 
v.  State,  12  Fla.  562 ;    Irvin  v.  State,  19  Fla.  872. 

There  is  no  doubt  about  the  fact  that  the  accused  here  was  taken 
from  the  courtroom  and  remained  out  for  at  least  10  minutes  during 
the  discussion  of  the  competency  of  a  witness  against  him.  He  has 
the  right  to  be  present  and  to  hear  questions  of  law  as  well  as  ques- 
tions of  fact  discussed,  and  in  fact  no  steps  can  be  taken  in  the  case 
in  his  absence.  The  court  must  see  in  capital  cases  that  the  accused  is 
present  before  any  proceedings  are  taken  in  the  case.  The  fact  that 
the  court  directed  the  argument  to  be  gone  over  again  could  not  pos- 
sibly restore  the  accused  to  the  position  of  hearing  what  had  already 
been  said  in  his  absence.    *    *    * 

For  the  errors  herein  pointed  out  the  judgment  in  this  case  must  be 
reversed,  and  a  new  trial  awarded." 

6  In  cnf=es  of  felony  it  has  been  held  that  defendant  must  be  present  at 
the  Impaneling  of  the  jury  (Dougherty  v.  Commonwealth,  69  Pa.  2S6  [1871]), 
the  swearing  and  examination  of  witnesses  (Bearden  v.  State,  44  Ark.  331 
[1884];  State  v.  Moran,  46  Kan.  318,  26  Pac.  754  [18011).  at  the  charge  to  the 
jury  (Roberts  v.  State,  111  Ind.  340,  12  N.  E.  500  [1887]),  at  the  reception  of 
the  verdict  (Summers  v.  State,  5  Tex.  App.  365,  32  Am.  Kep.  573  [1879J),  at 
the  discharge  of  the  jury  for  failure  to  agree  (State  v.  Wilson,  50  Ind.  487, 
19  Am.  Rep.  719  [1875]),  and  when  sentence  is  given  (French  v.  State,  85  Wis. 
400,  55  N.  W.  560,  21  L.  R.  A.  402,  39  Am.  St.  Rep.  855  [1893]). 

On  the  necessity  for  the  defendant's  presence  at  a  view  of  the  premises, 
the  authorities  are  not  in  accord.  See  People  v.  Thorn,  156  N.  Y.  286,  50  N. 
E.  947.  42  L.  R.  A.  368  (1898) ;    People  v.  Bush,  68  Cal.  623,  10  Pac.  169  (1886). 

"While  there  is  some  conflict  of  authority  upon  the  question,  there  is 
a  great  preponderance  In  favor  of  the  proposition  that,  under  such  provisions, 
the  absence  of  the  accused  at  the  hearing  and  decision  of  a  motion  for  a 
change  of  venue,  or  continuance  of  the  case,  at  the  hearing  and  decision  on 
motion  in  arrest  of  judgment,  or  at  the  hearing  and  decision  of  a  demurrer  to 
the  indictment,  will  not  vitiate  the  judgment  in  a  case  of  felony;  that 
it  is  not  essential  that  the  accused  should  be  present  at  the  filing  and  trial  of 
motions  and  pleas  not  involving  the  question  of  guilt  or  imiocence  on  the 
merits."    Baskin,  J.,  in  State  v.  Woolsey,  19  Utah,  491,  57  Pac.  428  (1899). 


144  VERDICT  (Ch.  12 

CHAPTER  XII 

VERDICT 


If  tliey  [the  Jurors]  cannot  all  agree  in  one  mind,  let  them  be  sepa- 
rated and  examined  why  they  cannot  agree;  and  if  the  greater  part 
of  them  know  the  truth  and  the  other  part  do  not,  judgment  shall  be 
according  to  the  opinion  of  the  greater  part. 

Britton  (Nichols)  lib.  1,  12b. 


ANONYMOUS. 

(Court  of  Common  Bench,  13G7.    Lib.  Ass.  233,  pi.  11.) 

In  another  Assize  before  the  same  Justices  at  Northampton  the 
Assize  was  sworn,  and  they  were  all  agreed  except  one  who  would  not 
agree  with  the  eleven ;  and  then  they  were  remanded,  and  remained 
there  all  that  day  and  the  next  without  drink  or  food.  And  then  it  was 
demanded  of  him  by  the  Justices  if  he  would  agree  with  his  com- 
panions. He  said  never.  That  he  would  die  first  in  prison.  And 
upon  this  a  day  was  given  on  the  same  verdict  in  the  Common  Bench. 
Kirk  prayed  judgment  on  the  verdict.  Thorp  said  they  were  all  in 
accord  that  this  was  not  a  proper  verdict  taken  of  eleven,  no  verdict 
could  be  taken  of  eleven.  Nevertheless  Kirk  showed  how  Wilby  in 
trespass  took  the  verdict  of  eleven  and  sent  the  twelfth  to  prison,  and 
the  attaint  was  sued  against  the  eleven.  And  also  W.  Thorp  in  an 
assize  in  the  twentieth  year  of  the  present  King  took  the  verdict  of 
twelve  (sic).  Thorp.  This  is  not  a  precedent  for  us,  for  he  was 
greatly  reproved  for  that.  And  afterward  by  assent  of  all  the  Justices 
it  was  agreed  that  this  was  not  a  proper  verdict.  Wherefore  it  was  de- 
cided that  this  panel  should  be  quashed  and  annulled  and  that  he 
who  was  in  prison  should  be  released  and  that  the  plaintiff  should  sue 
out  a  new  venire  to  summon  the  Assize.^ 

1  "The  parties  to  the  litigation  have  'put  themselves'  upon  a  certain  test. 
That  test  is  the  voice  of  the  country.  Just  as  a  coi^oration  <:an  have  but 
one  will,  so  a  country  'can  have  but  one  voice — 'le  pays  vint  e  dyt'  In  a  later 
age  this  communal  principle  might  have  led  to  the  acceptance  of  the  major- 
ity's verdict.  But  as  yet  men  had  not  accepted  the  dogma  that  the  voice  of  a 
majority  binds  the  community.  In  communal  affairs  they  demanded  unanim- 
ity; but  minorities  were  expected  to  give  way.  Then  at  this  point  the  'quasi 
judicial'  position  of  the  jurors  becomes  important  No  doubt  it  would  be 
wrong  for  a  man  to  acquiesce  in  a  verdict  that  he  knew  to  be  false;  ibut  in 
the  common  case — and  it  becomes  commoner  daily — many  of  the  jurors  renlly 
have  no  lirst-haiid  knowledge  of  the  facts  about  which  they  speak,  and  there 
is  no  harm  in  a  juror's  joining  in  a  verdict  which  expresses  the  belief  of 
those  of  his  fellows  who  do  know  something.    Thus  a  professed  unanimity  is^ 


Ch.  12)  VERDICT  145 

When  the  jury  have  come  to  a  unanimous  determination  with 
respect  to  their  verdict,  they  return  to  the  box  to  deliver  it.  The  clerk 
then  calls  them  over  by  their  names,  and  asks  them  whether  they  are 
agreed  on  their  verdict,  to  which  they  reply  in  the  affirmative.  He 
then  demands  who  shall  say  for  them,  to  which  they  answer,  their 
foreman.  This  being  done,  he  desires  the  prisoner  to  hold  up  his  hand, 
and  addresses  them :  "Look  upon  the  prisoner,  you  that  are  sworn. 
How  say  you,  is  he  guilty  of  the  felony  (or  treason,  etc.)  whereof  he 
stands  indicted,  or  not  guilty?"  H  they  say,  "Guilty,"  then  he  asks 
them,  "What  lands  or  tenements,  goods  or  chattels  the  prisoner  had 
at  the  time  of  the  felony  committed,  or  at  any  time  since?"  to  which 
they  commonly  reply,  "None  to  our  knowledge."  If  they  say,  "Not 
guilty,"  then  the  clerk  asks  them  "whether  he  did  fly  for  it  or  not." 
They  commonly  answer,  "not  to  our  knowledge,"  but,  if  they  find  a 
flight,  it  is  recorded.  The  officer  then  writes  the  word  "guilty"  or 
"not  guilty,"  as  the  verdict  is,  after  the  words  "po.  se."  on  the  record ; 
and  again  addresses  the  jury:  "Hearken  to  your  verdict  as  the  court 
hath  recorded  it.  You  say  that  A.  B.  is  guilty  (or  not  guilty)  of  the 
felony  whereof  he  stands  indicted,  and  that  he  hath  no  goods  or 
chattels,  and  so  you  say  all."     *     *     * 

The  verdict  thus  given  is  either  general  to  the  whole  of  the  charge, 
partial  as  to  a  part  of  it,  or  special,  where  the  facts  of  the  case  alone 
are  found,  and  the  legal  inference  is  referred  to  the  judges. 

1  Chitty,  Criminal  Law,  635. 


REX  V.  LEGINGHAM. 

(Court  of  King's  Bench,  1670.    2  Keb.  687.) 

Stroud  on  1  Inst.  227,  b,  prayed  to  set  aside  a  privy  verdict  on  infor- 
mation for  unreasonable  distress,  sed  non  allocatur,  for  unless  in  cases 
of  Felony,  where  the  Party  must  be  present  at  the  delivery,  it  may  be 
private,  and  so  hath  been  the  constant  practice  of  forty  years,  as  well 
where  the  King  alone  is  Party,  as  in  Actions  qui  tam;  but  the  Court 
conceived  that  no  information  lieth  for  this  offense,  unless  it  be  said 
as  comnion  Oppressor  or  Barretor;  also  privy  verdict  may  be  out  of 
the  County  well  enough.    But  adjornatur. 

as  our  .rolis  show,  very  easily  produced.  Nor  must  It  escape  us  that  the 
justices  are  pursuing  a  course  which  puts  the  verdict  of  the  coiintry  on  a  level 
with  the  older  modes  of  proof.  If  a  man  came  clean  from  the  ordeal  or  suc- 
cessfully made  his  law,  the  due  proof  would  have  been  given ;  no  one  could 
have  questioned  the  dictum  of  Omniscience.  The  veredictum  patriae  Is  assim- 
ilated to  the  judicium  Dei.  English  judges  find  that  a  requirement  of  unanim- 
ity is  the  line  of  least  resistance ;  it  spares  them  so  much  trouble,"  2  Pollock 
&  Maitland,  History  of  English  Law,  p.  G24. 
Mik.Cr.Pb.(Abridged  Ed.) — 10 


146  VERDICT  (Ch.  12 

COMMONWEALTH  v.  GIESON. 

(Geueral  Court  of  Virginia,  1S17.     2  Va.  Cas.  70.) 

The  prisoner  was  convicted  of  murder  in  the  second  degree,  and 
five  years  fixed  on  as  the  term  of  his  imprisonment.  When  brought 
up  to  receive  his  sentence,  he  moved  the  court  to  set  aside  the  pre- 
tended verdict  alleged  to  be  rendered  against  him,  because  the  said  pre- 
tended verdict  is  not  the  verdict  of  the  jury  sworn  to  try  the  prisoner, 
one  of  the  jurors  being  absent  from  the  rest,  and  out  of  the  presence 
of  the  court  at  the  time  the  said  pretended  verdict  was  received  in  the 
court,  and  at  the  time  the  jurors  were  discharged  by  the  court,  which 
was  not  known  to  the  said  prisoner,  or  his  counsel,  at  the  time  of  the 
rendition  and  reception  of  the  said  pretended  verdict.  He  also  moved 
the  court  to  set  aside  the  verdict  (this  ought  to  have  been  a  motion 
to  arrest  the  judgment),  for  that  "he  ought  not  by  the  laws  of  the  land 
to  be  convicted  of  murder  on  the  said  indictment,  the  same  being  by 
law  insufficient  to  charge  him  with  the  said  crime."  In  support  of  his 
first  proposition,  he  introduced  Charles  Woodson,  one  of  the  jurors, 
who,  being  sworn,  said  that  he  came  into  court  with  the  rest  of  the 
jurors,  after  having  agreed  to  a  verdict  against  the  prisoner,  which 
was  subscribed  by  Oglesby  Scruggs,  and  that  he  remained  in  court 
until  the  jurors'  names  were  all  called  over,  and  severally  answered  to, 
and,  the  clerk  asking  if  the  jury  had  agreed,  it  was  answered  they  had, 
and  the  jury  directed  to  look  upon  the  prisoner,  and,  being  asked 
if  the  prisoner  was  guilty  or  not,  it  was  answered  guilty,  and  the  ver- 
dict delivered  to  the  clerk,  and  the  same  that  had  been  agreed  to  in 
the  jury  room,  read  aloud  in  open  court;  that  being  sick,  and  at  this 
moment  likely  to  faint,  he  requested  one  of  the  deputy  sheriffs  who 
was  standing  near  him,  in  the  rear  of  the  jury,  to  attend  him,  and 
stepped  into  the  jury  room,  where  he  laid  down,  and  there  remained 
until  the  jury  were  discharged ;  that  he  was  not  present  in  court  at  the 
discharge.  Nor  was  he  present  when  any  alteration  in  the  phraseology 
of  the  verdict  was  made  in  court,  nor  at  any  time  after  he  had  an- 
swered to  his  name,  and  heard  the  verdict  which  had  been  by  the  jury 
agreed  on,  in  their  room,  read  by  the  clerk  as  already  stated.     *     *     * 

The  evidence  introduced  by  the  prosecution  satisfied  the  court  that 
after  the  jury  came  into  court,  with  their  verdict  written  on  the 
indictment  and  subscribed  by  one  of  their  body,  they  were  called  over 
and  answered  severally  to  their  names,  declaring  that  they  had  agreed 
in  a  verdict,  and,  being  told  to  look  on  the  prisoner,  they  said  he 
was  guilty;  the  verdict  was  then  delivered  to  the  clerk,  and  by  him 
read  aloud  in  open  court;  the  jury  were  not  then  immediately  dis- 
charged by  order  of  court,  but  some  alteration  in  the  terms  of  the 
verdict  being  suggested  by  the  prosecutor,  so  as  to  make  it  read 
"public  jail  and  penitentiary  house,"  instead  of  "penitentiary,"^  the 
clerk  was  ordered  to  make  it  in  the  presence  of  the  court  and  jury. 
At  this  time  it  was  not  known  that  one  of  the  jury  had  withdrawn 


Ch.  12)  VERDICT  147 

The  clerk,  to  effect  the  alteration,  wrote  a  verdict  at  large  on  the  same 
indictment,  in  these  words :  "We  of  the  jury  find  the  prisoner  guilty 
of  murder  in  the  second  degree,  and  ascertain  the  term  of  his  confine- 
ment in  the  public  jail  and  penitentiary  house  to  be  five  years,"  which 
was  subscribed  by  William  Watson,  another  of  the  jurors,  and  read 
aloud  in  open  court,  assented  to  by  the  jurors  present,  and  the  whole, 
being  supposed  to  be  present,  were  then  discharged.  The  clerk  ran  his 
pen  across  the  verdict  delivered  in  by  the  jury  in  the  first  instance, 
without  being  directed  so  to  do,  that  he  might  know  which  to  regard 
in  making  up  the  record,  and  that  the  verdict  which  was  at  first  de- 
livered into  court,  and  read  as  above  stated,  being  the  verdict  agreed 
by  the  whole  jury,  is  in  these  words :  "We  of  the  jury  being  impaneled 
for  the  purpose  of  trying  Levi  Gibson  for  the  murder  of  his  brother, 
Francis  Gibson,  are  of  opinion  that  the  said  Levi  Gibson  is  guilty  of 
murder  in  the  second  degree,  and  that  he,  the  said  Levi  Gibson,  be 
confined  in  the  penitentiary  for  the  term  of  five  years."  Signed : 
"Oglesby  Scruggs." 

On  this  statement  and  evidence,  the  superior  court  adjourned  to 
this  court  the  following  questions: 

(1)  Can  this  court  disregard  the  verdict  which  was  written  in  court 
as  above  stated,  and  refer  to  the  verdict  which  was  first  delivered  by 
the  jury  into  court,  as  above  stated,  as  an  existing  verdict  of  the  jury 
in  the  terms  in  which  it  is  written?  If  so,  (2)  is  this  verdict  suffi- 
cient to  authorize  this  court  to  give  judgment  against  the  prisoner  that 
he  be  confined  in  the  "public  jail  and  penitentiary  house?"     *     *     *  2 

The  following  is  the  judgment  of  The  Court: 

This  court  is  of  opinion,  and  doth  decide,  that  the  verdict  which 
was  written  in  court  is  a  nullity,  because  it  was  only  agreed  to  by 
eleven  jurors,  the  twelfth  juror  having  retired  from  the  court  before 
it  was  written  and  received,  and  that,  therefore,  the  superior  court 
ought  to  disregard  the  said  verdict ;  .and  the  court  is  further  of  opinion 
that,  in  a  case  of  felony,  after  the  verdict  is  rendered  by  the  jury,  and 
read  in  open  court,  it  is  the  duty  of  the  clerk  to  direct  the  jury  to 
hearken  to  their  verdict  as  the  court  has  recorded  it,  and  then  to  repeat 
the  verdict  to  them,  and  either  to  poll  them,  or  to  say  to  them,  "And 
so  say  you  all,"  or  words  to  that  effect,  in  which  latter  case,  if  none  of 
the  jury  express  their  dissent,  the  verdict  ought  to  stand  as  recorded, 
and  that  until  the  assent  of  the  jury  is  expressed  in  one  of  these  \yay5 
the  jury  has  a  right  to  retract;  and  until  after  the  assent  of  the  jury 
is  expressed  as  aforesaid,  the  verdict  is  not  perfected ;  that  the  first 
verdict  rendered  in  this  case  was  imperfect  in  these  particulars,  and 
therefore  no  judgment  can  be  rendered  on  it.     *     *     * 

This  court  is  further  of  opinion  that,  the  verdict  being  imperfect,  it 
ought  to  be  set  aside,  and  a  venire  facias  de  novo  awarded,  and  a  new 
trial  had  of  the  prisoner,  either  on  this  indictment,  as  an  indictment 
for  manslaughter,  or  on  a  new  indictment  for  murder,  which  is  or- 
dered to  be  certified,  etc. 

»  Part  of  this  case  is  omitted. 


L48  VERDICT  (Ch.  12 

STATE  V.  DAWKINS  et  al. 
(Supreme  Court  of  South  Carolina,  1890.    32  S.  C.  17,  10  S.  E.  772.) 

McIvER,  J,8  *  *  *  The  ninth  and  tenth  grounds  of  appeal 
question  the  legality  of  the  course  pursued  in  the  court  below  after  the 
verdict  had  been  rendered,  and  the  jury  discharged  from  the  case,  by 
reimpaneling  them  the  next  day,  for  the  purpose  of  giving  them  in- 
structions, inadvertently  omitted  before,  as  to  their  power  to  recom- 
mend to  mercy,  and  the  effect  of  such  recommendation.  We  do  not 
know  of  any  authority  for  such  a  proceeding,  and  none  has  been  cited. 
While  we  have  no  doubt  whatever  that  the  course  pursued  in  this  in- 
stance was  prompted  by  the  best  motives,  and  was  really  designed  to 
give  the  defendants  the  benefit  of  a  merciful  provision  of  the  law, 
yet  we  feel  bound  to  regard  it  as  a  dangerous  innovation,  upon  well- 
settled  legal  principles,  and  one  which  is  not  sanctioned  by  any  lavv. 
After  a  jury  have  rendered  their  verdict,  andl  have  been  discharged, 
we  know  of  no  authority  by  which  they  can  be  reimpaneled,  and,  un- 
der further  instructions,  be  called  upon  to  render  a  new  and  different 
verdict.  Such  a  power,  once  recognized,  even  in  a  case  like  this,  where 
its  exercise  was  doubtless  intended  in  favor  of  liberty,  would  afford  a 
precedent  which  might  lead  to  the  most  dangerous  consequences.  But, 
without  pursuing  this  line  of  remark,  it  is  quite  sufficient  for  us  to 
say  that  it  is  without  authority  of  law.  We  must  therefore  regard  the 
second  so-called  "verdict"  as  an  absolute  nullity,  and  the  judgment, 
which  we  must  assume  was  rendered  upon  it,  as  without  legal  founda- 
tion, and  should  for  that  reason  be  set  aside. 

It  may  be  said,  however,  that  the  first  and  only  real  verdict  in  the 
case  would  be  sufficient  to  support  the  judgment.  But  it  must  be  re- 
membered that  by  the  express  terms  of  the  statute  (Gen.  St.  §  2481) 
the  only  judgment  which  would  be  legally  rendered  on  that  verdict 
would  be  imprisonment  in  the  penitentiary  with  hard  labor  for  life, 
and  any  other  judgment  would  be  erroneous  and  illegal;  and,  if  so, 
then  our  plain  duty  is  to  reverse  it.  Now,  while  the  nature  of  the 
judgment  rendered  in  this  case  does  not  distinctly  appear  in  the  rec- 
ord, yet  we  are  bound  to  infer  from  what  does  there  appear  that 
the  judgment  actually  rendered  was  erroneous  and  illegal;  for  the 
act  of  1883,  amending  the  section  of  the  General  Statutes  above  re- 
ferred to,  expressly  declares  that  where  a  person  is  convicted  of  bur- 
glary at  common  law,  and  is  recommended  to  the  mercy  of  the  court  ^ 
by  the  jury,  the  punishment  shall  be  reduced  from  that  prescribed  by 
that  section  of  the  General  Statutes  prior  to  the  amendment.  And  as 
the  manifest  object  of  the  circuit  judge,  in  reimpaneling  the  jury,  was 
to  give  these  defendants  the  benefit  of  the  reduction  provifted  for,  we 
are  forced  to  the  conclusion  that  the  judgment  rendered  was  based 
upon  the  second  so-called  "verdict." 

«  Part  of  this  case  is  oniittGcL 


Ch.  12)  VERDICT  149 

The  judgment  of  this  court  is  that  the  judgment  of  the  circuit  court, 
so  far  as  it  concerns  the  appellant,  William  Dawkins,  be  reversed,  and 
that  the  case  be  remanded  to  that  court  for  a  new  trial  as  to  said  Wil- 
liam Dawkins.* 


COMMONWEALTH  v.  TOBIN. 

(Supreme  Judicial  Court  of  Massacliusetts,  Suffolk,  1878.     125  Mass.  203,  28 

Am.  Rep.  220.) 

Indictment  for  manslaughter.  After  verdict  of  guilty  in  the  supe- 
rior court,  the  defendant,  on  the  same  day,  moved  to  set  aside  the  ver- 
dict.   *    *    * 

Gray,  C.  J.^  By  the  law  of  England,  in  cases  of  felony,  the  only 
verdict  allowed  was  a  public  verdict  pronounced  by  the  foreman  in 
open  court,  and  in  the  presence  of  the  prisoner.  In  prosecutions  for 
misdemeanors,  and  in  civil  cases,  although  the  jury  were  permitted 
to  separate  upon  giving  a  privy  verdict  orally  to  the  judge  out  of 
court,  yet  such  verdict  was  of  no  force  unless  afterwards  affirmed  by 
an  oral  verdict  given  publicly  in  court,  and  the  only  effectual  and  legal 
verdict  was  the  public  verdict.  3  Bl.  Com.  377;  4  Bl.  Com.  3G0 ;  1 
Chit.  Crim.  Law,  635,  636. 

In  this  country,  by  way  of  substitute  for  a  privy  verdict,  and  to  at- 
tain the  same  end  of  allowing  the  jury  to  separate  after  they  have 
come  to  an  agreement,  a  practice  has  been  adopted  in  civil  actions, 
and  in  cases  of  misdemeanors,  at  least,  if  not  of  all  but  capital  crimes, 
of  directing  the  jury,  if  they  should  agree  during  the  adjournment 
of  the  court,  to  sign  and  seal  up  their  finding,  and  come  in  and  affirm 
it  at  the  next  opening  of  the  court ;  but  the  verdict  which  determines 
the  rights  of  the  parties,  and  is  admitted  of  record,  and  upon  which 
judgment  is  rendered,  is  the  verdict  received  from  the  lips  of  the  fore- 
man in  open  court.  When  the  jury  have  been  permitted  to  separate 
after  agreeing  upon  and  sealing  up  a  verdict,  there  is  this  dift'erence 
between  civil  and  criminal  cases:  In  a  civil  action,  if  the  written  ver- 
dict does  not  pass  upon  the  whole  case,  or  the  jury  refuse  to  affirm  it, 
the  court  may  send  them  out  again,  and  a  fuller  or  dift'erent  verdict 
afterwards  returned  will  be  good.  But,  in  a  criminal  case,  the  oral 
verdict  pronounced  by  the  foreman  in  open  court  cannot  be  received, 
unless  it  is  shown  to  accord  substantially  with  the  form  sealed  up  by 
the  jury  before  their  separation.  Lawrence  v.  Stearns,  11  Pick.  501 ; 
Pritchard  v.  Hennessey,  1  Gray,  294;    Commonwealth  v.  Townsend, 

4  After  the  jury  has  been  discharged,  it  is  too  late  for  a  juror  to  say  be 
did  not  assent  to  the  verdict    Mercer  v.  State,  17  Ga.  146  (18.55). 

"Under  our  statute  the  verdict  must  be  in  writing;  but  this  does  not  dis- 
jiense  with  the  requirements  that  the  names  of  the  jurors  shall  be  called  to 
ascertain  that  they  are  all  present,  and  that  they  shall  be  asked  if  they  all 
assent  to  the  verdict."  Maxwell,  G,  J.,  in  Longfellow  v.  State,  10  Neb.  105, 
4  N.  W.  420  (1880). 

6  Part  of  this  case  is  omitted. 


150  VERDICT  (Ch.  12 

5  Allen,  216;  Commonwealth  v.  Durfee,  100  Mass.  146;  Common- 
wealth V.  Carrington,  116  Mass.  37 ;  Dornick  v.  Reichenback,  10  Serg. 

6  R.  (Pa.)  84;  Lord  v.  State,  16  N.  H.  325,  41  Am.  Dec.  729.    *    *    * 
In  the  case  at  bar,  after  the  jury,  upon  their  return  into  court,  had 

been  asked  whether  they  had  agreed  upon  their  verdict,  and  the  fore- 
man had  answered  that  they  had,  the  form  of  verdict  which  had  been 
signed  and  sealed  up  before  the  jury  separated  was  silently  delivered 
by  the  foreman  to  the  clerk,  and  was  opened  and  read  by  the  clerk  to 
the  jury.  The  clerk  thereupon  told  the  jury  (in  the  words  accustomed 
to  be  used  after  a  verdict  has  been  pronounced  by  the  foreman  and 
minuted  by  the  clerk)  to  hearken  to  their  verdict  as  the  court  had  re- 
corded it.  And  the  bill  of  exceptions  states  that  "the  above  is  all  that 
was  said." 

In  Commonwealth  v.  Carrington,  already  cited,  upon  which  the  At- 
tornev  General  principally  relies,  the  bill  of  exceptions  stated  that, 
before  the  verdict  was  recorded,  the  clerk  asked  the  jury  if  their  ver- 
dict was  that  the  defendant  was  guilty,  to  which  they  assented;  and, 
although  the  precise  form  in  which  such  inquiry  and  response  were 
expressed  was  not  set  forth  in  the  bill  of  exceptions,  it  was  assumed, 
both  by  the  counsel  and  by  the  court,  that  an  oral  verdict  had  been 
returned  in  due  form,  if  any  such  verdict  could  be  received  after  the 
jury  had  separated  and  had  brought  in  a  sealed  verdict. 

But,  in  the  present  case,  it  distinctly  appears  that  when  the  clerk 
told  the  jury  to  hearken  to  their  verdict  as  recorded,  no  legal  or  ef- 
fectual verdict  had  been  returned  by  the  jury,  and  they  had  not  been 
asked,  nor  in  any  form  of  words  orally  and  publicly  stated,  what  their 
verdict  was,  and  that,  after  they  had  been  told  that  a  verdict  of  guilty 
had  been  recorded,  they  simply  said  nothing.  A  verdict  which  has 
never  been  spoken  by  the  jury  cannot  be  implied  from  the  mere  omis- 
sion of  the  jury  to  contradict  the  statements  of  the  clerk,  or  from 
the  silence  of  the  prisoner  and  his  counsel. 

The  verdict  received  and  recorded  by  the  court  not  being  a  legal 
verdict,  it  was  the  right  of  the  defendant,  upon  his  motion  filed  on  the 
same  day,  to  have  it  set  aside.  The  order  of  the  superior  court,  over- 
ruling this  motion  and  denying  him  this  right,  was  a  decision  upon  a 
question  of  law  which  could  not  have  been  raised  before  verdict,  and 
was  therefore  a  proper  subject  of  a  bill  of  exceptions.  Gen.  St.  c.  115, 
S  7.     *     *     * 

Exceptions  sustained. 


Ch.  12)  VERDICT  151 

HUNTER  V.  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1S75.    79  Pa.  503,  21  Am.  Rep.  S3.) 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court,  November 
15,  1875.« 

The  plaintiff  in  error  was  indicted  for  a  felonious  assault.  The 
jury  convicted  him  of  assault.  A  motion  in  arrest  of  judgement  was 
made,  which  was  overruled  by  the  court  below,  and  judgment  entered 
on  the  verdict.    This  is  assigned  here  for  error. 

The  record  presents  the  single  question  whether,  upon  an  indict- 
ment charging  a  felony,  the  jury  may  acquit  of  the  felony,  and  con- 
vict of  the  constituent  misdemeanor.  We  are  in  no  doubt  as  to  the 
rule  at  common  law.  It  was  long  held  in  England  that  upon  an  in- 
dictment for  a  felony  there  could  be  no  conviction  for  the  minor  offense 
of  misdemeanor.  Rex  v.  Cross,  1  Ld.  Raym.  711,  3  Salk.  193;  2 
Hawk.  c.  47,  §  6 ;  1  Chit.  C.  L.  251,  639.  The  reason  of  the  rule  was 
that  persons  indicted  for  misdemeanors  were  entitled  to  certain  ad- 
vantages at  the  trial,  such  as  the  right  to  make  a  full  defense  by  coun- 
sel, to  have  a  copy  of  the  indictment,  and  a  special  jury,  privileges  not 
accorded  to  those  indicted  for  a  felony.  It  is  apprehended  these  rea- 
sons no  longer  exist  in  England — at  least  not  to  the  extent  they  did 
formerly,  for  by  St.  1  Vict.  c.  85,  §  11  (Lord  Denman's  act),  the  rule 
itself  has  been  abolished,  and  now  upon  a  bill  charging  a  felony  a 
conviction  may  there  be  had  for  a  constituent  misdemeanor.  It  is  clear 
that  the  reason  of  the  rule  has  no  application  in  this  state.  On  the 
contrary,  the  advantages,  if  any,  upon  the  trial,  are  all  in  favor  of  those 
charged  with  a  felony.  By  the  merciful  provisions  of  our  criminal 
law,  the  higher  and  more  atrocious  the  crime,  the  more  numerous  are 
the  safeguards  thrown  around  the  accused,  and  the  more  jealously 
does  the  law  guard  every  legal  right  to  which  he  is  entitled. 

The  rule  in  other  states  of  this  country  is  by  no  means  uniform.  It 
is  said  by  Mr.  Wharton,  in  his  work  on  Criminal  Law  (section  400), 
that  the  old  common-law  rule  is  still  followed  in  Massachusetts,  Indi- 
ana, and  Maryland ;  while  in  New  York,  Vermont,  New  Jersey,  Ohio, 
North  Carolina,  South  Carolina,  and  Arkansas  it  has  been  held  that, 
the  reason  of  the  English  rule  having  ceased,  the  rule  itself  ceases,  in 

obedience   to   the   maxim    "Cessante    ratione    legis    cessat    ipsa    lex." 
*     *     * 

The  general  rule  is  well  settled  that,  upon  an  indictment  charging 
a  particular  crime,  the  defendant  may  be  convicted!  of  a  lesser  offense 
included  within  it.  Thus  upon  an  indictment  for  murder  the  prisoner 
may  be  convicted  of  manslaughter;  a  person  charged  with  burglary 
may  be  convicted  of  larceny,  if  the  proof  fail  of  breaking  and  enter- 
ing;   a  person  charged  with  seduction  may  be  convicted  of  fornica- 

6  Part  of  this  case  is  omitted. 


152  VERDICT  (Ch.  12 

tion  (Dinkey  v.  Commonwealth,  17  Pa.  127,  55  Am.  Dec.  542);  when 
persons  are  indicted  for  riotous  assault  and)  battery,  they  may  be 
convicted  of  assault  and  battery  only  (Shouse  v.  Commonwealth,  5 
Barr,  83) ;  when  the  charge  is  assault  and  battery,  a  conviction  may 
be  had  for  assault.  Instances  of  this  kind  might  be  multiplied  in- 
definitely if  necessary.     *     *     * 

The  judgment  of  the  court  of  quarter  sessions  is  affirmed.' 


STATE  V.  GREEN. 

{Supreme  Court  of  North  Carolina,  1896.    119  N.  C.  899,  26  S.  E.  112.) 

FuRCHES,  J.'  This  is  an  indictment  for  a  secret  assault  with  a  dead- 
ly weapon  (a  gun)  with  intent  to  kill,  under  chapter  32,  Laws  1887. 
Under  instructions  from  the  court  the  jury  found  the  defendant  "guilty 
as  accessory,"  and  upon  this  verdict  the  court  pronounced  judgment, 
and  the  defendant  appealed.    *    *    * 

We  have  no  means  of  knowing  from  this  indictment  and  verdict 
whether  the  defendant  was  convicted  as  accessory  before  or  after  the 
fact.  But  neither  of  these  offenses  is  the  same  offense  as  that  charged 
in  the  bill  of  indictment,  nor  is  either  one  of  them  a  less  degree  of 
the  same  offense  as  that  charged  in  the  bill.  There  were  other  mat- 
ters discussed  in  the  argument  before  us  that  we  do  not  consider  and 
pass  upon,  as  they  are  not  likely  to  arise  again  upon  a  new  trial. 
There  is  error,  and  a  new  trial  is  awarded  the  defendant. 

New  trial.' 

7  At  the  early  common  law  It  appears  that  not  only  could  the  accused  he 
convicted  for  a  misdemeanor  on  an  indictment  setting  out  the  special  circum- 
stances of  the  case,  charging  the  acts  alleged  to  have  been  done  feloniously, 
if  the  acts  amounted  to  a  misdemeanor  only,  Holmes'  Oase,  Cro.  Car.  376 
(1634) ;  Joyner's  Case,  Kel.  29  (1664),  but  even  on  a  general  indictment  for 
felony,  in  which  the  misdemeanor  was  not  charged,  if  a  special  verdict  was 
found.  Leeser's  Case,  Cro.  Jac.  497  (1618).  But  in  Westbeer's  Case,  2  Str. 
1133  (1740),  one  was  indicted  for  feloniously  stealing  a  parchment,  and  the 
jury  found  a  special  verdict  by  which  it  appeared  that  the  parchment  con- 
cerned the  realty.  The  court  held  that,  the  prisoner  being  not  guilty  of  the 
felony,  he  could  not  be  convicted  of  the  misdemeanor,  and  said,  referring  to 
the  cases  cited  above:  "In  the  cases  cited  pro  rege,  the  judges  appear  to  be 
transported  with  zeal  too  far." 

8  Part  of  this  case  is  omitted. 

9  Accord:  Where  the  verdict  does  not  contain  the  name  of  the  defendant. 
Williams  v.  State,  6  Neb.  334  (1877).  Or  show  on  which  of  several  counts 
the  defendant  is  found  guilty.  Day  v.  People,  76  111.  380  (1875).  Or  to  which 
of  several  defendants  the  verdict  applied.  People  v.  vSepulveda,  59  Cal.  342 
(1881) ;  Favor  v.  State,  54  Ga.  249  (1S75).  See,  also,  State  v.  Coon,  18  Minn. 
518,  Gil.  464  (1872) ;  Wells  v.  State,  116  Ga.  87,  42  S.  E.  390  (1902) ;  State  v. 
Pierce,    136  Mo.  34,  37  S.  W.  815  (1896). 


Ch.  12)  VERDICT  153 

KLEIN  V.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1864.    31  N.  T.  220.) 

Ingraham,  J.^**  The  prisoner  was- indicted  with  Barbara  Klein  for 
grand  larceny.  When  the  case  came  on  for  trial,  Klein  pleaded  guilty 
of  an  attempt  to  commit  grand  larceny.  Myer  was  then  tried  and 
found  guilty.  The  prisoner  now  moves  in  arrest  of  judgment,  on  the 
ground  that  both  defendants  must  be  convicted  of  the  same  offense, 
and  not  of  different  grades  of  offense.  There  can  be  no  doubt  that  one 
defendant  might  have  been  acquitted  and  the  other  convicted,  and 
such  conviction  have  been  good.  And  it  has  been  held  that  where  two 
are  charged  with  a  joint  offense,  either  may  be  found  guilty.  R.  v. 
Hempstead,  R.  &  R.  344.  But  where  persons  are  jointly  indicted  for 
a  joint  offense,  they  cannot  be  convicted  of  separate  offenses;  and  if 
the  act  is  indivisible,  such  as  conspiracy  or  riots,  then  one  cannot  be 
convicted  without  the  other.  Stephens  v.  State,  14  Ohio.  388 ;  State 
V.  McO'Blenis,  21  Mo.  272;  Pennsylvania  v.  Huston,  Add.  (Pa.)  334. 
But,  except  in  indictments  for  offenses  necessarily  joint,  joint  defend- 
ants may  be  convicted  of  different  grades.  Shorese  v.  Caw,  5  Barr. 
83 ;  R.  v.  Butterworth,  R.  &  R.,  520.  And  they  may  be  convicted  of 
different  degrees  of  criminality  in  the  same  offense,  where  the  de- 
fendants may  act  different  parts  in  the  same  transaction.  Thus,  where 
two  defendants  are  charged  with  murder  in  the  same  indictment,  the 
jury  may  find  one  guilty  of  murder  and  another  of  manslaughter. 
United  States  v.  Harding,  1  Wall.  Jr.  127,  Fed.  Cas.  No.  15,301 ;  Mask 
V.  State,  32  Miss.  406.  So,  in  a  charge  of  burglary,  one  may  be  con- 
victed of  burglary  and  another  of  grand  larceny,  where  the  first  one 
broke  open  the  house  and  the  other  afterwards  entered,  and  the  two 
committed  the  larceny.    Russ.  &  Ry.  C.  C.  520. 

In  the  present  case,  the  prisoner  Klein  pleaded  guilty  of  an  at- 
tempt to  commit  grand  larceny.  This  she  might  have  done  without 
necessarily  being  proven  guilty  of  the  further  offense.  After  the  plea 
was  put  in,  she  was  considered  as  if  she  had  been  tried  separately  and 
acquitted,  or  convicted  of  a  lesser  grade.  It  did  not  prevent  the  trial 
of  the  prisoner  Myer,  nor  his  conviction  of  the  whole  charge,  any 
more  than  if  both  had  been  indicted  for  murder,  and  one  on  a  sep- 
arate trial  had  been  convicted  of  manslaughter;  or,  in  an  indictment 
for  burglary,  if  one  had  been  convicted  of  larceny,  the  other  might 
afterwards  be  convicted  of  burglary. 

I  understand  the  rule  to  be,  if  both  are  convicted  of  offenses  in  the 
same  continuing  transaction,  they  may  be  convicted  of  different  de- 
grees, if  the  prisoners  take  different  parts  in  the  commission  of  the 
same  offense. 

The  prisoner  was  properly  convicted,  and  the  judgment  should  be 
affirmed. ^^ 

10  Part  of  this  case  is  omitted. 

II  Compare  Rex  v.  Hempstead,  Rnss.  &  Ry.  344  (ISIS). 


154  VERDICT  (Ch.  12 

REX  V.  TURNER  et  al. 

(Old  Bailey,  1663.     Sid.  171.) 

Turner  and  others  were  indicted  for  that  they  feloniously  and  bur- 
glariously broke  the  mansion  house  of  Francis  Tryan  in  a  certain 
ward  in  London,  and  there  stole  money  and  jewels  to  the  value  of 
£5,000.  And  after  not  guilty  pleaded,  and  much  evidence,  the  jury 
found  Turner  guilty  of  burglary  (for  which  he  was  afterward  hung 
in  Cheapside)  and  one  of  the  sons  guilty  of  felony  (et  the  others  they 
acquitted)  and  the  question  was  if  this  was  a  good  verdict  as  to  the 
felony  against  the  son.  It  seemed  to  the  two  Chief  Justices  and  others 
that  it  was  not;  for,  although  the  jury  might  have  found  all  guilty 
of  felony,  they  could  not  find  one  guilty  of  burglary  and  the  others 
of  felony  upon  the  same  indictment  and  the  same  evidence. 


SELVESTER  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1897.    170  U.  S.  262,  18  Sup.  Ct.  5S0,  42 

L.  Ed.  102a.) 

Mr.  Justice  Gray,  ^^Ir.  Justice  Brown,  and  Mr.  Justice  Shiras  con- 
curred in  part,^-  as  follows: 

We  concur  in  the  judgment  of  affirmance,  and  upon  this  short 
ground :  The  indictment  contained  four  counts.  The  defendant  plead- 
ed not  guilty  to  the  whole  indictment,  and  thereby  joined  issue  on  each 
and  all  of  the  counts,  and  the  jur^y  might  find  the  defendant  guilty 
upon  all  or  any  of  them.  The  jury  did  return  a  verdict  of  guilty  upon 
each  of  the  first  three  counts,  and  disagreed  as  to  the  fourth  count. 
The  jury  thus  answered  the  whole  of  the  issue  presented  by  the  plea 
to  each  of  the  first  three  counts,  and  failed  to  answer  the  issue  pre- 
sented by  the  plea  to  the  fourth  count.  Their  failure  to  return  a 
verdict  on  the  fourth  count  did  not  affect  the  validity  of  the  verdict 
returned  on  the  other  three  counts,  or  the  liability  of  the  defendant 
to  be  sentenced  on  that  verdict.  The  defendant  was  sentenced  upon 
those  counts  only  upon  which  he  had  been  convicted  by  the  jury. 
There  is  no  error,  therefore,  in  the  judgment  rendered  upon  the  ver- 
dict. 

But  in  so  much  of  the  opinion  of  the  court  as  suggests  that  the  plain- 
tiff in  error  may  be  hereafter  tried,  convicted,  and  sentenced  anew  upon 
the  fourth  count,  we  are  unable  to  concur.  No  attempt  has  been  made 
to  try  him  anew,  and  the  question  whether  he  may  be  so  tried  is  not 
presented  by  this  record.  Upon  principle,  on  one  indictment,  and 
agains.  one  defendant,  there  can  be  but  one  judgment  and  sentence, 
and  that  at  one  time,  and  for  the  oft'ense  or  offenses  of  which  he  has 

12  The  stntenient  of  facts  and  the  opinion  of  the  court,  delivered  by  Mr. 
Justice  White,  are  omitted. 


Ch.  12)  '  VERDICT  155 

been  convicted ;  and  a  sentence,  upon  the  counts  on  which  he  has  been 
convicted  by  the  jury  definitely  and  conclusively  disposes  of  the  whole 
indictment,  operates  as  an  acquittal  upon,  or  a  discontinuance  of.  any 
count  on  which  the  jury  have  failed  to  agree,  and  makes  any  further 
proceedings  against  him  on  that  count  impossible.  No  case  has  been 
found  in  which,  after  a  conviction  and  sentence,  remaining  unreversed, 
on  some  of  the  counts  in  an  indictment,  a  second  sentence,  upon  a  sub- 
sequent trial  and  conviction  on  another  count  in  the  same  indictment, 
has  been  affirmed  by  a  court  of  error. 

In  Ballew  v.  U.  S.,  160  U.  S-  187,  203,  16  Sup.  Ct.  2G3,  40  L.  Ed. 
388,  and  in  Putnam  v.  U.  S.,  162  U.  S.  687,  715,  16  Sun.  Ct.  923,  40 
L.  Ed.  1118,  in  each  of  which  a  judgment  upon  conviction  on  an  indict- 
ment containing  two  counts  was  affirmed  as  to  one  count,  and  reversed 
as  to  the  other  count,  the  order  of  reversal  did  not  direct  a  new  trial 
on  the  latter  count,  but  was  guardedly  framed  in  general  terms  "for 
such  proceedings  with  reference  to  that  count  as  may  be  in  conformity 
to  law";  and  under  such  an  order  it  would  be  open  to  the  defend- 
ant, if  set  at  the  bar  to  be  tried  again  on  that  count,  to  plead  the  previ- 
ous'verdict  and  sentence  in  bar  of  the  prosecution." 


STATE  V.  FRENCH. 

(Supreme  Court  of  Louisiana,  1S9S.  50  La.  Aim.  461,  23  South.  GOG.) 
Breaux,  J.^*  The  state  in  this  case  appealed  from  an  order  sus- 
taining a  motion  in  arrest  of  judgment.  The  defendant  was  prose- 
cuted upon  an  information  containing  two  counts.  In  one  count,  he 
was  charged  with  having  stabbed  with  intent  to  murder ;  in  the  other 
count,  with  having  willfully  and  maliciously,  with  a  dangerous  weapon, 
inflicted  a  wound  less  than  mayhem.  The  verdict  found  was,  "Guilty 
of  wounding  less  than  mayhem."    ♦    ♦    * 

The  defendant  avers  that  the  verdict,  "Guilty  of  wounding  less  than 
mayhem,"  is  not  responsive  to  the  offenses  charged  in  the  information. 
In  the  first  place,  it  is  evident  that  the  verdict  was  not  a  general  ver- 
dict, but  one  that  the  jury  found  without  special  reference  to  the  of- 
fense charged  in  either  count  of  the  information.  It  was  a  verdict  of 
their  own  selection.  They  had  been  instructed  by  the  court  regarding 
the  form  of  the  verdict,  as  follows :  "You  may  render  one  of  five  ver- 
dicts. (1)  You  may  find  the  prisoner  at  the  bar,  'Guilty  as  charged 
in  the  first  count  of  the  information;'    (2)  you  may  find  him,  'Guilty 

13  Where  the  counts  are  for  the  same  offense,  see  Commonwealth  v.  Fitch- 
bur?  R.  R..  120  Mass.  372  (1S76). 

"It  was  held  at  an  early  day.  In  this  court  that  one  good  count  was  suf- 
ficient to  uphold  a  general  verdict  and  judgment  upon  all  the  counts,  though 
some  of  them  might  be  bad."  Nelson,  J.,  in  Clifton  v.  U.  S.,  4  How.  250,  11 
L.  Ed.  957  (1S46).  .  ^     ^ 

Contra:  O'Connell  v.  Reg.,  11  CI.  &  F.  155  (1S44).  And  see  Avirett  v.  State, 
76  Md.  510,  25  Atl.  676,  9S7  (1S03). 

14  Part  of  this  case  is  omitted. 


1 56  VERDICT  (Ch.  12 

of  stabbing  with  a  dangerous  weapon  with  intent  to  kill/  as  charged 
in  the  first  count;  (3)  you  may  find  him,  'Guilty  as  charged  in  the 
second  count;'  (4)  you  may  find  him,  'Not  guilty;'  or  (5)  you  may 
find  him,  'Not  guilty,  on  the  ground  of  insanity.'  If  you  find  the  de- 
fendant was  insane  at  the  time  of  the  commission  of  the  act,  you  should 
qualify  your  verdict  of  'Not  guilty'  by  the  addition  of  the  phrase  'on 
the  ground  of  insanity.'  "  The  jury  did  not  follow  the  instruction. 
It  was  within  their  power  to  find  a  particular  verdict  in  language  of 
their  own,  and  if  it  covers  an  offense  denounced  by  the  statute,  or  an 
oft'ense  of  a  lower  degree,  included  under  the  terms  and  conditions  of 
the  offense  charged,  it  would  be  a  sufficient  verdict. 

Taking  an  example  of  the  most  ordinary  sort,  the  charge  being 
murder,  the  jury  may  find  the  defendant  guilty  of  manslaughter;  or, 
the  charge  being  burglary,  if  larceny  only  be  proven  the  accused  may 
be  found  guilty  of  larceny;  so  in  all  cases  of  offense  of  less  degree 
of  the  same  class.  But  the  finding  of  the  jury  in  such  cases  must  be 
of  an  offense  complete  in  itself.  The  offense  must  be  completely  stated. 
No  valid  judgment  can  be  pronounced  upon  the  partial  verdict,  which 
fails  to  find  the  ingredients  essential  to  constitute  the  crime. 

To  ihustrate  by  another  example  of  a  familiar  kind:  If  a  jury  were 
to  return  in  court  that  an  accused  was  guilty  of  taking  the  goods  of 
another  without  any  intimation  as  to  the  asportation  and  appropriation 
of  the  goods,  it  is  useless  to  state  that  the  finding  would  be  void.  Not 
so  if  they  were  to  return  that  he  is  "guilty  of  larceny,"  for  that  word 
embraces  all  the  ingredients  essential  to  constitute  the  crime  of  steal- 
ing. Larceny,  manslaughter,  and  other  words  denoting  crimes  have 
a  well-defined  meaning.  They  are  in  themselves  a  definition.  No  one 
can  be  misled,  or  there  need  not  be  the  least  confusion,  when  these 
names  are  made  use  of.  If  the  jury  undertakes  to  define  the  crime, 
it  should  be  by  a  name  in  which  there  can  arise  no  confusion  or  am- 
biguity, or,  if  it  is  not  identifiable  by  a  well-known  name,  then  the  de- 
scription should  include  the  essentials  to  constitute  the  crime.  In  one 
case  in  this  state,  the  court  went  to  the  extreme  of  holding  that  only 
a  general  verdict  could,  under  the  law,  be  found.  State  v.  Jurche,  17 
La.  Ann.  71.     That  limit,  properly,  has  not  always  been  observed. 

Special  and  particular  verdicts  may  be  found  with  the  understand- 
ing that  the  name  of  the  crime  when  it  has  a  name,  or  the  facts  when 
it  has  not,  necessary  to  constitute  the  crime  are  fully  and  explicitly 
stated.  The  court  cannot  supply  the  facts  necessary  to  constitute 
the  crime.  2  Hawk.  P.  C.  622 ;  State  v.  Blue,  84  N.  C.  809.  "The 
omission  of  any  fact  necessary  to  constitute  the  offense  is  fatal."  3 
Whart.  Cr.  Law,  §  3188.  Where  "intent"  is  one  of  the  essential  in- 
gredients of  the  crime,  it  must  be  found  in  a  special  verdict,  in  order 
to  sustain  a  judgment.  The  crime  denounced  in  the  case  before  us  for 
decision,  we  have  seen,  includes  "intent"  as  an  essential  ingredient. 

No  one,  unless  acting  willfully  and  maliciously  with  intent,  is  guilty 
of  inflicting  a  wound  less  than  mayhem.     In  our  view,  the  verdict 


Ch.  12)  VERDICT  157 

was  defective.  It  failed  to  find  the  criminal  intent.  It  is  defective 
v^hether  construed  as  a  special  or  a  partial  verdict.  In  a  very  recent 
case  this  court  held  that  it  was  not  permissible  to  go  beyond  the  words 
used  by  the  jury  in  matters  essential  to  the  finding  that  a  crime  has 
been  committed  by  the  accused.  State  v.  Bellard,  50  La.  Ann.  59-i, 
23  South.  504,  69  Am.  St.  Rep.  461.  In  another,  also  a  case  recently 
decided  (State  v.  Hearsey,  50  La.  Ann.  373,  23  South.  372),  the-court 
extended  the  rules  of  practice  much  further  than  there  is  any  neces- 
sity of  extending  in  the  case  here.  The  rule  applying  is  sustained  by 
a  number  of  well-considered  decisions,  notably  the  cases  of  United 
States  V.  Buzzo,  18  Wall.  125,  21  L.  Ed.  812,  and  State  v.  Burdon. 
38  La.  Ann.  357.  In  the  former  the  court  said,  in  construing  a  spe- 
cial verdict,  that  the  intention  is  of  the  essence  of  the  crime,  and  is 
not  found  by  the  special  verdict;  no  judgment  can  be  entered  on  the 
verdict.  And,  in  the  latter  cited  case,  the  court,  in  substance,  with 
reference  to  the  finding  of  a  jury,  said:  "What  is  not  found  is  not 
supposed  to  exist" — citing  State  v.  Ritchie,  3  La.  Ann.  512. 

There  are  views  not  in  accord  with  those  we  have  here  expressed. 
The  prosecuting  officers  have  directed  our  attention  to  them,  and  par- 
ticularly to  the  case  of  State  v.  Mason,  42  La.  Ann.  715,  7  South.  668. 
For  the  reasons  before  stated,  we  cannot  adhere  to  the  decision  in 
the  Mason  Case.  We  are  constrained  to  adhere  to  decisions  we  before 
cited.     We  think  they  are  correct  in  law. 

It  is  therefore  ordered  and  decreed  that  the  judgment  appealed  from 
is  affirmed. 


REX  v.  LORD  FITZWATER. 

(Court  of  King's  Bench,  1675.     2  Lev,  139.) 

Information  in  the  nature  of  a  quo  warranto  for  fishing  in  the  river 
Thames  in  a  place  extending  in  B  in  seven  parishes  as  appears  upon 
the  record. ^^  After  verdict  for  the  defendant  it  was  moved  in  arrest 
of  judgment.  *  *  *  And  afterward  in  Mich,  term  the  verdict  was 
set  aside  upon  affidavits  that  the  jury  cast  lots  for  their  verdict  and 
gave  verdict  according  to  the  lot.     *     *     *  la 

16  Part  of  this  case  is  omitted. 

16^ Accord:  White  v.  State,  37  Tex.  Cr.  R.  651,  40  S.  W.  7S9  (1S97).  In 
Vaise  v.  De  Laval,  1  Term  R.  11  (1785),  Lord  Mansfield  refused  to  receive  as 
evidence  affidavits  of  a  juror  that  the  jury  had  determined  their  verdict  by 
lot.    But  see  White  v.  State,  37  Tex.  Cr.  R.  651,  40  S.  W.  789  (1897). 


158  VERDICT  (Ch.  12 

GLIDEWELL  v.  STATE. 

(Supreme  Court  of  Tennessee,  1SS5.    15  Lea,  133.) 

Wilson,  Special  Judge,  delivered  the  opinion  of  the  court.^'^    *    *    * 

The  next  contention  is  that  the  verdict  should  have  been  set  aside, 
and  a  new  trial  granted,  because,  as  it  is  shown  by  the  affidavits  of 
two  of  the  jurors,  the  jury,  in  considering  of  their  verdict,  differed 
among  themselves  as  to  the  time  the  prisoner  should  be  imprisoned, 
and  therefore  it  was  agreed  among  them  that  each  juryman  should 
set  down  the  time  he  was  for,  and  the  product  of  the  aggregate  divided 
by  twelve  was  to  be  accepted  and  returned  as  the  verdict  of  the  jury, 
which  was  done.  If  the  facts  were  this  way,  they  would  clearly,  un- 
der our  authorities,  vitiate  the  verdict,  and  it  should  be  set  aside. 

But  upon  a  careful  examination  of  the  record  we  find  the  facts 
to  be  otherwise,  even  as  detailed  by  the  jurors  who  give  their  affidavits. 
Each  juror,  it  seems,  did  set  down  or  announce  the  time  or  number 
of  years  he  thought  the  prisoner  ought  to  be  confined,  and  the  result 
of  this  aggregate  divided  by  twelve  was  the  verdict  agreed  upon  and 
returned  by  the  jury.  But  there  was  no  agreement  or  understand- 
ing, expressed  or  implied,  tacit  or  otherwise,  before  this  aggregation 
and  division  were  made,  that  the  result  should  be  their  verdict;  nor 
was  it  in  any  way  to  bind  the  assent  or  influence  the  judgment  of  the 
individual  members  of  the  jury. 

And  it  is  the  fact  of  an  agreement  or  understanding,  before  this 
method  of  reaching  a  result  is  adopted,  or  while  it  is  in  process  of 
execution,  to  be  bound  by  its  result,  and  to  accept  it,  that  vitiates  the 
verdict.  If  this  be  the  true  test,  much  less  should  we  be  inclined  to 
set  aside  a  verdict,  in  the  absence  of  an  agreement  or  understanding 
beforehand  to  be  bound  by  the  result  reached  under  this  method,  when 
we  can  see  that  the  method  and  its  result  were  not  even  used  as  an  ar- 
gument with  any  member  of  the  jury  to  secure  his  acquiescence  in  the 
result.  No  authority  we  have  been  able  to  find,  certainly  none  in  this 
state,  holds  that  a  verdict  is  vitiated  simply  because  the  jury  put  down 
the  time  each  was  for  confining  the  prisoner  on  trial  before  them, 
added  all  of  them  together,  divided  the  total  by  twelve,  and  adopted, 
after  consultation  and  agreement,  the  product  as  their  verdict,  when 
there  was  no  agreement  or  understanding  beforehand  to  do  so,  and 
when  the  method  adopted  and  its  result  were  not  used  as  an  argu- 
ment to  influence  an  unwilling  or  hesitant  member  to  acquiesce  in  it. 
This  is  the  category  in  which  we  find  this  case.     *    *    * 

The  judgment  of  the  court  below  is  therefore  reversed,  and  the 
cause  will  be  remanded  for  a  new  trial. ^"^ 

17  Part  of  this  case  is  omitted. 

18  Accord:  Tliompson's  Case,  8  Grat.  (Va.)  G37  (1S51) :  Cochlin  v.  People 
93  111.  410  (1S7U). 


Ch.  13)  KEW   TEIAL  159 

CHAPTER  XIII 
NEW  TRIAL 


REX  V.  INHABITANTS  OF  OXFORD. 

(Court  of  King's  Bench,  ISll.     13  East,  411.) 

This  indictment,  for  the  nonrepair  of  a  public  bridge  over  the  river 
Cherwell,  called  Enslow  Bridge,  within  the  county  of  Oxford,  was 
preferred  at  the  assizes  for  the  county  of  Oxford,  and  was  tried  be- 
fore Lawrence,  J.,  at  the  last  assizes  at  Oxford,  when  the  defend- 
ants were  found  guilty;  the  question  made  at  the  trial  being  whether 
certain  persons  were  bound  to  the  repair  ratione  tenurse.    And  now 

Jervis,  on  behalf  of  the  defendants,  prayed  the  court  for  a  certiorari 
to  remove  the  indictment  and  proceedings  into  this  court,  for  the  pur- 
pose, as  he  stated,  of  moving  for  a  new  trial ;  the  verdict  being  against 
the  evidence  and  the  direction  of  the  learned  judge  who  presided  at 
the  trial.  He  admitted  that  in  case  of  The  King  v.  Elizabeth  Nicoll, 
14  East,  211,  note,  where  the  proceedings  on  an  indictment  at  Hick's 
Hall  for  a  conspiracy  were  removed  by  certiorari  between  verdict  and 
judgment,  this  court,  referring  to  The  King  v.  Baker,  said  that  they 
could  not  give  judgment,  not  being  apprised  of  the  circumstances  of 
the  offense.  But  that  difficulty  will  not  arise  in  this  case,  where  the 
object  is  to  bring  the  whole  evidence  in  review  before  the  court  upon 
the  learned  judge's  report.  It  is  of  great  consequence  to  those  con- 
cerned that  a  verdict  given  against  evidence  and  the  direction  of  the 
judge  should  in  some  mode  or  other  be  corrected. 

Eord  EivLENBOROUGH,  C.  J.  It  is  also  of  great  consequence  that 
we  should  not,  without  precedent,  and  against  authority  intrude  upon 
all  the  inferior  jurisdictions  in  the  kingdom  (for  if  we  do  it  in  one 
case,  there  is  no  reason  why  we  should  not  be  called  upon  to  do  it  in 
all),  by  removing  hither  their  proceedings  after  verdict  and  before 
judgment,  for  the  purpose  of  examining  the  evidence  on  which  the 
verdicts  have  been  obtained.  There  would  be  no  end  of  such  investi- 
gations. But  I  would  not  have  the  notion  for  a  moment  entertained 
that  we  have  the  power  of  entering  into  the  merits  of  verdicts,  and 
granting  new  trials  in  proceedings  before  inferior  jurisdictions. 

Bayi^ey,  J.,  assenting,  the  certiorari  was  denied. 


160  NEW    TRIAL  (Ch.  13 

GRAY  V.  COIMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1SS2.     101  Pa.  380,  47  Am.  Rep.  733.) 

Paxson,  J.^  This  cause  was  argued  here  as  upon  a  motion  for  a 
new  trial,  and  two  of  the  assignments  of  error  are  to  the  refusal  of 
the  court  to  grant  it.  We  ought  not  to  be  called  upon  at  this  late  day 
to  say  that  it  is  not  within  the  line  of  our  recognized  duties  to  correct 
supposed  errors  in  the  lower  courts  in  this  manner.  Nor  are  capital 
cases  an  exception  to  this  rule.  We  are  not  jurors,  and  are  not  called 
upon  to  weigh  the  evidence  even  when  a  human  life  is  at  stake,  fur- 
ther than  to  say,  when  called  upon  to  do  so  in  an  orderly  manner, 
whether  there  is  sufficient  evidence  to  submit  to  the  jury  upon  a  par- 
ticular question  of  fact.  If  the  jury  make  a  mistake,  the  remedy  is  a 
motion  for  a  new  trial  in  the  court  below.  If  a  new  trial  is  refused, 
where  upon  the  evidence  it  ought  to  have  been  granted,  and  the  judg- 
-ment  is  affirmed  here  upon  the  law  of  the  case,  the  only  remedy  is  an 
appeal  to  the  pardoning  power.  It  is  foreign  to  our  duties  to  inter- 
fere in  such  cases,  nor  do  we  see  that  any  practical  good  would  result 
from  our  assuming  such  a  jurisdiction.  It  is  better  for  the  admin- 
istration of  the  criminal  law  that  each  department  of  the  government 
concerned  therein  should  confine  itself  to  those  duties  which  the  law 
has  assigned  to  it,  and  which  long  experience  has  shown  to  be  wise 
and  proper.    *    *    * 

The  judgment  is  affirmed. 


COMMONWEALTH  v.  GREEN. 

(Supreme  Judicial  Court  of  Massachusetts,  Suffolk  and  Nantucket,  1S22.     17 

Mass.  515.) 

Parker,  C.  J.*  The  prisoner,  having  been  convicted,  by  the  ver- 
dict of  a  jury,  of  the  crime  of  murder,  at  the  last  term  of  the  court, 
moved  for  a  new  trial,  because,  as  alleged  in  his  motion  one  Sylvester 
Stoddard,  who  had  been  sworn  as  a  witness  on  the  part  of  govern- 
ment, and  who  had  testified  to  the  jury,  had  been  convicted  of  the 
crime  of  larceny,  in  a  court  having  jurisdiction  of  the  offense,  within 
the  state  of  New  York,  whereby,  as  is  alleged,  he  was  rendered  in- 
famous, and  for  that  reason  his  testimony  could  not  be  received  in  a 
court  of  justice  in  this  commonwealth.  A  copy  of  the  record  of  that 
conviction  has  been  produced  in  support  of  the  motion ;   and  sufficient 

1  Part  of  this  case  Is  omitted. 

"The  refusal  of  a  motion  for  a  new  trial  Is  an  error  in  law  only  when  It  Is 
apparent  that  such  refusal  amounts  to  a  clear  abuse  of  discretion."  Williams, 
J.,  in  Commonwealth  v.  Roddy,  1.84  Pa.  292,  39  Atl.  211  (1S9S).  Cf.  People 
V.  Francis,  52  Mich.  575.  18  N.  W.  3G4  (1884);  Omeara  v.  State,  17  Ohio  St 
515  (1S07) ;  Reliihart  v.  State,  43  Ind.  147  (1873). 

»  Part  of  this  case  is  omitted. 


Ch.  13)  NEW    TRIAL  IGl 

evidence  has  been  given  to  satisfy  the  court,  for  the  purpose  of  sus- 
taining this  motion,  that  the  Sylvester  Stoddard,  who  was  sworn  and 
examined  on  the  trial  of  the  prisoner,  was  the  subject  of  that  convic- 
tion. It  appeared  also,  that  judgment  was  rendered  upon  that  con- 
viction, and  was  executed  upon  the  convict,  witliin  the  public  prison 
of  the  state  of  New  York. 

It  has  been  argued  by  the  Attorney  and  Solicitor  General,  that  by 
law  a  new  trial  cannot  be  granted  of  a  capital  felony ;  and  it  appears 
by  the  EngHsh  text-books,  and  by  several  decisions  cited  in  support 
of  the  position,  that  in  cases  of  felony,  a  new  trial  is  not  usually  al- 
lowed by  the  courts  of  that  country.  But  whatever  reasons  may  ex- 
ist in  that  country  for  this  practice,  we  are  unable  to  discern  any  suf- 
ficient ground  for  adopting  it  here. 

That  a  prisoner,  who  has  been  tried  for  a  felony,  and  acquitted, 
should  not  be  subjected  to  a  second  trial  for  the  same  offense,  seems 
consistent  with  the  humane  principles  of  the  common  law,  in  relation 
to  those  whose  lives  have  been  once  put  in  jeopardy.  But  the  same 
humane  principles  would  appear  to  require  that,  after  a  conviction,  a 
prisoner  should  be  indulged  with  another  opportunity  to  save  his  life, 
if  anything  had  occurred  upon  the  trial  which  rendered  doubtful  the 
justice  or  legality  of  his  conviction.  "Nemo  bis  debet  vexari,  pro  una 
et  eadem  causa,"  is  a  maxim  of  justice,  as  well  as  of  humanity,  and 
was  established  for  the  protection  of  the  subject  against  the  oppres- 
sions of  government.  But  it  does  not  seem  a  legitimate  consequence 
of  this  maxim  that  one  who  has  been  illegally  convicted  should  be  pre- 
vented from  having  a  second  inquiry  into  his  oft'ense,  that  he  may  be 
acquitted,  if  the  law  and  the  evidence  will  justify  an  acquittal. 

It  is  true  that,  in  England,  the  utmost  caution  is  used  on  capital 
trials  in  favor  of  life;  and  if  an  irregularity  materially  aft'ecting  the 
trial  occurs  to  the  injury  of  the  accused,  the  court  usually  represents 
such  matter  to  the  crown,  and  a  pardon  is  generally  granted.  But  it 
is  the  right  of  every  subject  of  that  country,  and  of  every  citizen  of 
this,  to  have  a  fair  and  legal  trial  before  his  peers,  the  jury ;  and  it  is 
hardly  consistent  with  that  right  that  it  should  be  left  to  the  will  or 
discretion  of  the  judge  whether  a  representation  of  an  actual  irreg- 
ularity shall  be  made  to  the  pardoning  power,  or  to  the  discretion 
of  the  latter  whether  that  power  shall  be  exercised  in  favor  of  a  per- 
son unlawfully  convicted. 

Where  the  error  appears  of  record,  in  either  country,  the  court  will 
arrest  the  judgment  after  a  verdict  of  guilty;  and  the  party  may  be 
again  indicted,  and  tried,  for  the  same  oft'ense.  If  the  error  does  not 
appear  of  record,  but  arises  from  inadvertency  of  the  judge  in  reject- 
ing or  admitting  evidence,  or  from  misbehavior  of  the  jury,  or  other 
cause  which  would  be  good  ground  for  a  new  trial  in  civil  actions  or 
misdemeanors,  justice  and  consistency  of  principle  would  seem  to  de- 
mand that  the  person  convicted  should,  upon  his  own  motion,  have  an- 
other trial,  instead  of  being  obliged  to  rely  upon  the  disposition  of 
Mik.Cr.Pr. (Abridged  Ed.) — 11 


IG2  NEW    TRIAL  ^  (Ch.  13 

the  court  to  recommend  a  pardon,  or  of  the  executive  power  to  grant 
it.  It  is  not  enough  that  the  Hfe  of  the  accused  will  generally  be  safe 
in  the  hands  of  such  highly  responsible  public  agents.  The  right  of 
the  subject  to  be  tried  by  his  peers,  according  to  the  forms,  as  well  as 
principles,  of  law,  is  the  only  certain  security  that  at  all  times  and  un- 
der all  circumstances  that  protection  which  the  Constitution  extends 
to  all  will  be  effectually  enjoyed. 

Nor  is  it  for  the  public  safety  and  interest  that  new  trials  should 
be  refused  in  such  cases;  for  it  must  be  obvious  that  in  most  cases 
of  irregularity,  which  would  be  a  good  cause  for  another  trial,  if  in 
the  power  of  the  court  to  grant  it,  a  pardon,  upon  the  representation 
of  the  court,  would  be  thought  to  follow  of  course,  and  thus,  in  many 
cases,  public  justice  might  be  prevented  on  account  of  defect  in  form, 
or  some  irregularity,  not  affecting  the  merits  of  the  case,  which  mis- 
chief might  be  avoided  by  another  trial. 

For  these  reasons  we  think  there  is  a  power  in  this  court  to  grant 
a  new  trial  on  the  motion  of  one  convicted  of  capital  offense,  sufficient 
cause  being  shown  therefor,  notwithstanding  the  English  courts  are 
supposed  not  to  exercise  such  authority ;  and  if  this  opinion  needs 
support,  the  case  of  John  Fries,  who,  after 'conviction  of  treason,  was 
tried  a  second  time,  and  the  case  in  South  Carolina,  cited  at  the  bar 
from  Bay's  Reports,  are  sufficient  for  this  purpose.  In  the  case  of 
United  States  v.  Fries,  3  Dall.  (Pa.)  515,  Fed.  Cas.  No.  5,126,  1  L. 
Ed.  701,  Mr.  Rawle,  the  district  attorney,  admitted  the  power  of  the 
court  to  grant  a  new  trial,  and  argued  only  against  the  propriety  of 
exercising  the  power  in  that  case.  Judge  Iredell  expressly  admitted 
the  power,  and  Judge  Peters,  who  was  against  a  new  trial,  although 
he  yielded  to  the  Circuit  Judge,  did  not  deny  the  authority  of  the 
court  to  grant  it.  In  a  late  case,  also,  in  New  York,  People  v.  Good- 
win, 18  Johns.  187,  9  Am.  Dec.  203,  which  was  a  case  of  felony,  it 
was  decided  that  the  cause  might  be  taken  from  the  jury,  and  a  new 
trial  ordered.     *     *     * 

Having  decided  that  to  grant  new  trials  in  capital  cases  is  within 
the  power  of  the  court,  and  that  the  exercise  of  this  power,  where 
there  has  been  no  error  on  the  trial,  is  discretionary,  if  every  sugges- 
tion should  be  listened  to,  without  regard  to  the  merits  of  the  case, 
or  the  just  bearing  of  the  fact  suggested,  it  is  certain  that  the  course 
of  public  justice  would  be  much  obstructed,  and  that  the  punishment 
of  crimes  would  often  be  evaded.  It  is  a  power  to  be  used  sparingly 
for  the  protection  of  innocence,  not  to  screen  the  guilty. 

Now,  in  the  case  before  us,  the  only  advantage  the  prisoner  would 
have  on  another  trial,  which  he  had  not  before,  would  be  to  show 
that  Stoddard,  one  of  the  witnesses  who  testified  against  him,  was 
not  deserving  of  credit,  because  he  had  been  convicted  of  larceny  in 
New  York.  If  this  witness  had  gone  to  the  jury  wholly  unimpeached, 
and  his  testimony  had  been  material  and  uncorroborated,  the  case 


Ch.  13)  NEW    TRIAL  IfJ^J 

would  be  a  strong  one  for  the  exercise  of  the  discretion  of  the  court 
in  granting  another  trial. 

But  this  witness  was  impeached  at  the  trial,  by  the  evidence  of  two 
convictions  of  larceny  within  the  commonwealth  ;  and  it  was  known 
to  the  jury  that  he  had  but  just  left  the  public  prison,  under  a  par- 
don granted  by  the  executive,  for  the  sole  purpose  of  rendering  him  a 
competent  witness.  Surely  evidence  of  another  conviction  of  a  sim- 
ilar offense  in  another  state,  of  which  he  had  not  been  pardoned, 
would  have  added  nothing  to  the  weight  of  evidence  against  his  cred- 
ibility. He  was  considered  as  a  degraded  person,  both  by  the  court 
and  jury;  and  in  the  charge  to  the  latter  by  the  court  they  were  ex- 
pressly told  that,  unless  they  found  his  testimony  corroborated  by  un- 
impeached  witnesses,  he  ought  not  to  be  believed.  The  same  observa- 
tions applied  to  another  witness,  who  appeared  under  similar  circum- 
stances. 

In  the  opinion  of  the  court,  there  was  sufficient  evidence  to  justify 
the  verdict  without  the  testimony  of  either  of  those  men.     ♦     *     * 

Under  these  circumstances,  to  grant  a  new  trial  would  be  only  to 
prolong  the  suspense  and  increase  the  anxiety  of  the  prisoner,  with- 
out any  final  advantage  to  him ;  and  we  do  not  feel  authorized  to  sur- 
render the  principles  of  justice  to  feelings  of  compassion  or  sympathy. 

Motion  overruled.* 

8  Compare  State  v.  David,  14  S.  C.  428  (1881). 

"Besides  writs  of  error,  naotions  for  new  trials  are  permitted  In  some  cases 
of  misdemeanor,  namely,  cases  of  misdemeanors  tried  before  the  Queen's 
Bench  Division  in  the  exercise  of  its  original  jurisdiction,  or  sent  down  by 
that  division  to  be  tried  at  the  Assizes  on  the  nisi  prius  side.  If  a  misde- 
meanor is  tried  before  commissioners  of  oyer  and  terminer  at  the  Assizes 
or  at  the  Quarter  Sessions,  the  Queen's  Bench  Division  will  not  after  verdict 
remove  the  case  by  certiorari,  with  a  view  to  granting  a  new  trial.  If  the 
parties  wish  to  have  the  possibility  of  applying  for  a  new  trial,  or  to  have  a 
special  jury,  their  course  is  to  apply  for  a  certiorari  before  the  case  comes  on 
to  be  tried.  If  the  court  Is  satisfied  that  questions  of  difficulty  are  likely  to 
arise  they  will  issue  a  ceirtiorari,  and*  either  have  the  case  tried  before  the 
Queen's  Bench  Division  at  Westminster,  or  send  it  down  to  be  tried  as  a 
nisi  prius  record  at  the  Assizes  or  in  the  city  of  Loudon.  TNTien  the  case  is 
so  tried  a  new  trial  may  be  moved  for  on  the  ground  of  misdirection,  that 
the  verdict  was  against  the  evidence,  or  on  other  grounds  on  which  new  trials 
are  moved  for  in  civil  cases.  According  to  Cliitty,  the  first  instance  of  such 
a  new  trial  'was  in  the  year  1655.  One  case  only  has  occurred  in  which  a 
new  trial  was  granted  for  felony,  and  that  case  was  afterwards  disapproved. 
of  and  Bot  followed  by  the  Judicial  Committee  of  the  Privy  Council  in  R.  v. 
Bertrand,  L.  R.  1  P.  C.  520.  It  is  very  remarkable  that  in  the  argument  upon 
R.  V.  Scaife,  no  notice  was  taken  of  the  novelty  of  the  proceeding."  Stephen's 
Hist.  Crim.  Law,  p.  310. 

"It  was  contended  on  behalf  of  the  prosecutor  that,  as  two  of  the  defend- 
ants had  been  acquitted,  the  record  could  not  be  sent  down  again  to  another 
trial  without  putting  their  guilt  or  innocence  again  into  a  state  of  inquiry, 
and  that,  inasmuch  as  defendants  who  have  been  acquitted  in  criminal  cases 
cannot  be  tried  a  second  time,  the  necessary  consequence  was  that  in  this  case 
we  could  not  grant  a  new  trial,  even  though  we  were  clearly  of  opinion  that 
the  other  two  defendants  had  been  improperly  convicted.  If  such  were  the 
rule,  it  would  bear  extremely  hard  on  particular  persons  accused;  for  then, 
however  unjust  the  verdict  against  some  of  the  defendants  might  appear  to  be, 
and  though  it  should  turn  out  beyond  all  contradiction  that  the  verdict  had 
been  obtained  by  the  grossest  perjury,  the  guilt  of  those  defendants  must 


t64  NEW   TRIAL  (Ch.  13 

STATE  V.  EAVES. 

(Supreme  Court  of  Georgia,  1001.     113  Ga.  740.  3D  S.  E.  318.) 

Simmons,  C.  J.*  *  *  *  From  the  indictment  it  may  be  ascer- 
tained that  the  accused  is  charged  with  the  violation  of  a  certain  penal 
statute.  The  accused  contended  that  this  act  was  no  longer  in  force  in 
Bartow  county,  having-  been  superseded  by  another  act.  He  sought  to 
make  the  question  in  the  lower  court  by  requesting  the  judge  to  instruct 
the  jury  that  a  conviction  couldl  not  be  had  under  the  indictment.  In 
the  motion  for  new  trial  complaint  is  made  that  the  judge  refused  to  so 
charge.  The  motion  also  sets  up  that  the  verdict  is  contrary  to  law, 
in  that  the  indictment  was  based  upon  this  inoperative  statute.  The 
question  was  not  raised  by  demurrer  to  the  indictment,  the  allegations 
of  which  were  sufficiently  established  by  the  evidence.  There  was  no 
motion  to  quash  the  indictment.  The  question  was  never  properly 
raised.  If  the  plaintiff  in  error  was  indicted  under  a  law  no  longer 
in  force,  and  the  indictment  is  fatally  defective,  he  does  not  want  a  new 
trial  under  that  indictment.  "In  such  a  case  the  remedy  is  by  general 
demurrer  before  a  trial  on  the  merits,  or  by  motion  in  arrest  after  ver- 
dict."   Roberts  v.  Keeler,  111  Ga.  186,  36  S.  E.  617. 

After  going  to  trial  upon  the  merits  without  objection  to  the  indict- 
ment, the  accused  could  not  properly  ask  the  direction  of  a  verdict 
in  his  favor  because  of  the  insufficiency  of  the  indictment.  See  Bray 
V.  Railroad  Co.,  113  Ga.  308,  38  S.  E.  849;  Strouse  v.  Kelly,  113 
Ga.  575,  38  S.  E.  957.  Nor  can  this  point  be  made  in  a  ground  of  a 
motion  for  a  new  trial  complaining  that  the  verdict  is  contrary  to  law 
and  the  evidence.  See  Phillips  v.^Railway  Co.,  112  Ga.  197,  37  S.  E. 
418;  Roberts  v.  Keeler,  supra.  In  the  absence  of  objection  to  such  an 
indictment,  a  conviction  is  authorized  if  the  evidence  sustains  the 
allegations  of  the  indictment  as  laid.  Without  regard,  therefore,  to 
the  merits  of  the  point  sought  to  be  raised,  we  must  affirm  the  over- 
ruling of  these  grounds  of  the  motion  for  new  trial. 

The  verdict  was  authorized  by  the  evidence.  Judgment  afHrmed. 
Cross-bill  dismissed.     All  the  Justices  concurring.^ 

necessarily  stand  on  record,  provided  one  defendant,  perhaps  included  in  the 
Indictment  for  the  very  purpose,  were  acquitted.  But  I  think  that  the  rule 
was  correctly  stated  by  the  counsel  for  the  defendants  that  in  granting  new 
trials  the  conrt  know  no  limitations  (except  in  some  excepted  cases),  but  they 
will  either  grant  or  refuse  a  new  trial  as  it  will  tend  to  the  advancement  of 
justice.  In  one  class  of  offenses,  indeed,  those  greater  than  misdemeanors,  no 
new  trial  can  be  granted  at  all.  But  in  misdemeanors  there  is  no  authority 
to  sliew  that  we  cannot  grant  a  new  trial  in  order  that  the  guilt  or  innocence 
of  those  who  have  been  convicted  may  be  again  examined  iuto."  Kenyon,  <X 
J.,  in  Hex  V.  Mawbey,  G  Term  R.  G3S  (179G). 

*  Part  of  this  case  is  omitted. 

6  Accord:    State  v.  Taylor,  37  La.  Ann.  40  (1SS5). 


Ch,  13)  KEW    TRIAL  165 

BEPLEY  V.  STATE. 

(Supreme  Court  of  Indiana,  1853.    4  Ind.  264,  58  Am.  Dec.  62S.) 

Stuart,  }.•  This  was  a  prosecution  for  a  nuisance,  under  the 
seventeenth  section  of  the  act  of  Alarch,  1853,  regulating  the  retail  of 
spirituous  Hquors.  Trial  by  jury.  Verdict  and  judgment  for  the 
state.    *    »    * 

There  is  a  technical  point,  well  settled  in  the  books,  but  often  over- 
looked in  practice,  which  would  restrain  us  from  disturbing  the  ver- 
dict, if  we  were  otherwise  so  disposed.  The  defendant  moved  first 
in  arrest  of  judgment.  According  to  the  authorities  he  could  not 
afterwards  take  the  opinion  of  the  court  below  on  the  sufficiency  of  the 
evidence,  by  a  motion  for  a  new  trial,  unless  he  had  brought  himself 
within  some  of  the  recognized  exceptions,  which  he  has  not  done. 
In  the  order  in  which  they  w^ere  made  the  one  motion  was  fatal  to  the 
other.     Rogers  v.  Maxwell,  4  Ind.  243 ;    Mason  v.  Palmerton,  2  Ind. 

Per  Curiam.    The  judgment  is  affirmed,  with  costs.' 

•  Part  of  this  case  is  omitted. 

7  Accord:  Rex  v.  White.  1  Burr.  333  (1757);  Respubllca  ▼.  Lacaze,  2  Dall. 
(Pa.)  lis,  1  L.  Ed.  313  (1791) ;  McCoiuas  v.  State,  11  Mo.  IIG  (1847). 

"A  new  trial  must  be  applied  for  within  two  days  after  the  conviction ; 
but,  for  good  cause  shown,  the  court,  in  cases  of  felony,  may  allow  the  ap- 
plication to  be  made  at  any  time  before  the  adjournment  of  the  term  at  which 
the  conviction  was  had.  When  the  court  adjourns  before  the  expiration  of 
two  days  from  the  conviction,  the  motion  shall  be  made  before  the  adjourn- 
ment."   Code  Cr.  Proc.  Tex.  1895,  art  819;  Pasch.  Dig.  art  3136. 

See.  also.  Lawpon  v.  State,  71  Ind.  296  (18S0) ;  State  v.  Alphiu,  81  N.  C.  566 
(1879) ;  Ross  v.  State,  65  Ga.  127  (1880). 


166  ARREST    OF   JUDGMENT  (Ch.  14 

CHAPTER  XIV 
ARREST  OF  JUDGMENT 


STATE  V.  SUTCLIFFE. 

(Court  of  Appeals  of  South  Carolina,  1850.    4  Strob.  372.) 

The  prisoner  was  convicted  at  the  May  term,  1849,  and  an  appeal 
was  taken  in  his  behalf,  which,  after  being  docketed,  was  abandoned. 
On  motion  being  made  for  judgment,  the  prisoner  insisted  that  this 
court  had  no  further  jurisdiction  in  the  matter,  but  that  he  must  be 
remanded  to  await  the  judgment  of  the  circuit  court  at  its  next  term; 
and,  secondly,  he  prayed  the  benefit  of  clergy.^ 

-WardIvAW,  J,  *  *  *  The  prayer  for  benefit  of  clergy  is  then 
allowed,  and  the  sentence  for  felony  within  the  benefit  will  now  be 
pronounced.  As  that  has  been,  by  our  statutes,  made  fine  and  im- 
prisonment, the  case  of  the  prisoner  is  just  as  if  he  had  been  indicted 
and  convicted  of  a  misdemeanor,  except  that,  under  the  right  of 
challenge,  he  has  enjoyed  privileges  which  one  accused  of  a  mis- 
demeanor is  not  entitled  to,  and  that  for  a  second  offense,  he  may  here- 
after lose  the  benefit  now  allowed  to  him. 

Richardson,  Evans,  and  Frost,  JJ.,  concurred.  Withe;rs,  J.,  ab- 
sent, from  indisposition. 

The  prayer  for  benefit  of  clergy  was  allowed,  and  the  sentence  for 
felony  within  the  benefit  was  pronounced  by  the  court. 


STATE  V.  ARDEN. 

(Court  of  General  Sessions  of  South  Carolina,  1795.    1  Bay,  4S7.) 

The  prisoner  was  indicted,  together  with  one  Campbell,  for  the 
murder  of  a  Spanish  seaman  by  the  name  of  Jewets,  and,  at  her  par- 
ticular request,  was  tried  separately.  Campbell  was  convicted  of  man- 
slaughter, but  the  prisoner  of  murder.  On  the  adjournment  day  of  the 
sessions,  when  she  was  brought  up  for  sentence,  ^ 

The  Court  (present  Burke,  Grimke,  Waties,  and  Bay,  Justices) 

unanimous  that  the  motion  in  arrest  of  judgment  should  be  overruled, 

,  as  the  prisoner  had  been  indicted  as  a  principal  in  both  counts  of  the 

indictment,  and  the  jury  were  to  judge  of  the  mahcious  intent,  of  the 

»  Part  of  this  case  is  omitted. 

«  The  arguments  of  counsel  are  omitted. 


Ch.  14)  ARREST   OF   JUDGMENT  1G7 

degrees  of  guilt  in  the  parties,  and  to  apply  the  evidence  tc  the  differ- 
ent counts  as  they  thought  proper. 

The  prisoner  was  then  asked  if  she  had  anything  to  offer  why 
sentence  of  death  should  not  be  pronounced  against  her.  Upon  which 
she  pleaded  pregnancy.  Whereupon  she  was  remanded  to  gaol,  and 
the  sheriff  was  directed  to  summon  a  jury  of  matrons,  de  ventre  in- 
spiciendo.  The  court  then  adjourned  from  day  to  day,  till  the  in- 
quisition was  found.  It  was  then  returned  by  the  sheriff  into  court, 
under  the  hands  and  seals  of  twelve  matrons,  in  which  they  certified 
that  they  had  examined  the  prisoner,  and  found  that  she  was  not  preg- 
nant. The  prisoner  was  then  brought  up,  and  received  sentence  of 
death,  and  was  afterwards  executed  pursuant  to  the  sentence.' 


STATE  V.  VANN. 
(Supreme  Court  of  North  Carolina,  ISSl.     84  N.  C  722.) 

Proceeding  in  a  criminal  action  at  Fall  term,  1880,  of  Hertford 
superior  court,  before  Schenck,  J. 

The  prisoner  being  brought  to  the  bar  of  the  court  for  judgment 
pursuant  to  the  decision  of  this  court,  reported  in  82  N.  C.  63-1,  was 
asked  if  he  had  anything  further  to  say  than  he  had  already  said  why 
sentence  of  death  should  not  be  pronounced  upon  him,  and  in  an- 
swer thereto  (through  his  counsel)  suggested  that  the  prisoner  since 
his  conviction  had  become  insane,  and  in  support  thereof  produced 
affidavits.  Thereupon  he  demanded  a  jury  trial  of  the  question  of  his 
insanity,  and  asked  for  a  continuance  of  the  cause  until  the  next  term 
to  prepare  for  trial.  The  court  held  that  he  was  entitled  to  a  jury  to 
inquire  into  the  fact,  and,  if  it  should  be  found  favorable  to  the 
prisoner,  the  judgment  must  be  suspended  until  his  sanity  was  restored, 
and  thereupon  remanded  him  to  prison  and  continued  the  case  that  the 
issue  might  be  tried  by  a  jury.  From  this  ruling  the  solicitor  for  the 
state  appealed. 

Smith,  C.  J.*  *  *  *  We  concur  entirely  with  the  ruling  of  his 
honor  that  judgment  must  be  suspended  if  the  prisoner  has  become  in- 
sane since  his  trial,  and  is  still  insane,  until  he  recovers  his  reason, 
and  "that  an  issue  to  be  submitted  to  the  jury  is  the  proper  mode  of 
ascertaining  the  truth  of  his  allegation.  The  principle  is  thus  laid 
down  bv  Lord  Hale:  "If  a  man  in  his  sound  memory  commits  a  capital 
offense,'  and  before  his  arraignment  he  becomes  absolutely  mad,  he 
ought  not  by  law  to  be  arraigned  during  such  his  phrensy,  but  be  re- 
mitted to  prison  until  that  incapacity  be  removed.     *     *     *     And  if 

8  In  E-ngland  preqrianry  is  not  fl  fRUse  for  arrest  of  judsinent,  but  can  only 
be  pleaded  in  stay  of  execution.    Chitty,  Cr.  Law,  759. 
4  Part  of  this  case  is  omitted. 


168  ARREST   OF   JUDGMENT  (Ch.  14 

such  person  after  his  plea  and  before  his  trial  become  of  nonsane 
memory,  he  shall  not  be  tried ;  or  if  after  his  trial  he  become  of  non- 
sane  memory,  he  shall  not  receive  judgment;  or  if  after  judgment  he 
become  of  nonsane  memory,  his  execution  shall  be  spared ;  for  were 
he  of  sound  memory,  he  might  allege  somewhat  in  stay  of  judgment 
or  execution."  Hale,  P.  C.  34.  The  same  language  is  used  by  Black- 
stone,  and  he  adds:  "For  as  is  observed  by  Sir  Edward  Coke,  the 
execution  of  an  oft'ender  is  for  example,  ut  poena  ad  paucos,  metus  ad 
omnes  perveniat ;  but  so  it  is  not  when  a  madman  is  executed,  but 
should  be  a  miserable  spectacle,  both  against  law  and  of  extreme  in- 
humanity and  cruelty,  and  can  be  no  example  to  others.  But  if  there 
be  any  doubt  whether  the  party  be  compos  or  not,  this  shall  be  tried  by 
a  jury."  4  Bl.  Comm.  25.  The  same  rule  is  laid  down  by  the  elemen- 
tary writers  and  may  be  found  in  adjudged  cases.  Shel.  on  Lunacy, 
467;  1  Bish.  Cr.  Law,  §  4S7;  Freeman  v.  People,  4  Denio  (N.  Y.) 
9,  47  Am.  Dec.  216. 

But,  for  the  reasons  stated,  the  appeal  was  improvidently  taken  and 
must  be  dismissed. 

Per  Curiam.    Appeal  dismissed.' 


STATE  V.  CARVER. 

(Supreme  Judicial  Court  of  Maine,  1862.     49  Me.  5S8,  77  Am.  Dec.  275.) 

Davis,  J.®  This  was  an  indictment  against  Carver  and  Lunt,  as 
principals,  and  also  against  Wilson  and  Clapp,  as  accessories  before  the 
fact.  The  first  two,  only,  appear  to  have  been  arrested.  Upon  arraign- 
ment they  pleaded  guilty,  and  afterwards  their  counsel  filed  a  motion  in 
arrest  of  judgment.  This  was  overruled  by  the  court,  and  the  case 
comes  before  us  on  exceptions. 

We  see  no  objection  to  the  indictment  itself  which  can  avail  the 
defendants,  especially  after  the  general  plea  of  "guilty."  The  count 
against  them  as  principals  is  sufficient  in  all  respects ;  and,  without  in- 
tending to  intimate  that  Wilson  and  Clapp  may  not  be  held  upon  the 
same  indictment,  we  are  clearly  of  the  opinion  that  judgment  may  now 
be  entered  upon  the  pleas  of  the  other  defendants. 

Another  ground  of  the  motion  in  arrest  is  that  the  grand  jury,  by 
whom  the  indictment  was  found,  were  "not  legally  drawn,  and  had  no 
power  to  act  in  the  premises."  This  allegation  is  one  of  fact,  as  well 
as  of  law.    The  facts  do  not  necessarily  appear  of  record,  though  in 

•  "We  do  not  understand  that  any  change  In  the  condition  of  the  prisoner 
was  shown  to  have  taken  place  since  the  impaneling  of  the  jury.  It  was 
tien,  in  effect,  requiring  the  court  to  arrest  or  stay  the  judgment,  for  the 
Bame  reason  which  had  been  unsuccessfully  urged  before  the  jury  In  defense 
of  the  criminal  charge.  We  think  the  circuit  court  properly  refused  to  enter* 
tain  the  motion."    Goldthwaite,  J.,  in  State  v.  Brinyea,  5  Ala.  243  (1843). 

•  Part  of  this  case  is  omitted- 


Ch.  14)  AtRRest  of  judgment  101) 

this  case  the  return  upon  one  of  the  venires  does  not  show  that  one  of 
the  grand  jurors  had  no  authority  to  act  as  such.  State  v.  Clough,  49 
Me.  573.  But  neither  the  venire,  nor  the  return,  constitutes  any  part 
of  the  record  of  this  particular  case.  The  proceedings  of  the  depart- 
ments of  the  government,  of  counties  and  towns,  and  officers  of 
counties  and  towns,  are  all  brought  into  requisition  in  order  to  con- 
stitute the  court.  Some  of  these  are  matters  of  record  in  the  court, 
of  which  judicial  notice  will  be  taken,  without  other  proof.  But,  if 
pleaded,  they  are  to  be  pleaded  as  matters  of  fact,  however  proved. 
They  are  proceedings  preliminary  to  the  organization  of  the  court,  and 
not  proceedings  of  the  court  after  it  is  organized.  A  motion  in  arrest 
of  judgment  in  any  particular  case  does  not  necessarily  bring  them 
before  us.  They  cannot  be  brought  before  us  except  by  being  plead- 
ed specially;  and  they  cannot  be  pleaded  in  such  a  motion  with  any 
more  propriety  than  any  other  extrinsic  facts. 

A  motion  in  arrest  of  judgment,  in  many  of  the  states,  is  sub- 
stantially a  motion  for  a  new  trial,  often  for  reasons  entirely  extrinsic 
of  the  record.  But,  at  common  law,  "judgment  can  never  be  arrested 
but  for  that  which  appears  upon  the  record  itself."  Peachy  v.  Harri- 
son, 1  Ld.  Raym.  233,  1  Salk.  77;  Sutton  v.  Bishop,  4  Burr.  2283, 
2287.  The  same  rule  prevails  in  this  country.  Such  a  motion  can 
only  be  made  "on  account  of  some  intrinsic  defect,  apparent  on  the 
face  of  the  record,  which  would  render  the  judgment  in  the  case  erro- 
neous." Howe's  Practice,  533  ;  Bedell  v.  Stevens,  8  Post.  (N.  H.)  118  ; 
Burnett  v.  Ballund,  2  Nott  &  McC.  (S.  C.)  435;  State  v.  Bangor,  38 
Me.  592,  and  cases  there  cited. 

That  the  "record"  referred  to  in  these  decisions  is  the  record  of  the 
particular  case  under  consideration  was  expressly  held  in  the  case  last 
cited.  It  was  alleged  in  the  motion  that  another  indictment  for  the 
same  offense  was  found  at  the  same  term  of  the  court.  But  it  was  de- 
cided that  such  a  motion  would  not  be  entertained  where  proof  was  re- 
quired to  sustain  it,  though  the  proof  was  a  matter  of  record  in  the 
same  court. 

A  motion  in  arrest  presents  only  the  sufficiency  of  the  indictment. 
State  V.  Nixon,  8  Vt.  70.  It  is  equivalent  to  a  demurrer,  and  can  be 
sustained  only  when  all  that  is  alleged  in  the  indictment  may  be  true, 
and  yet  the  person  convicted  not  have  committed  any  offense.  State  v. 
Hobbs,  39  Me.  212,  and  cases  cited.  And.  even  for  defects  which 
would  be  fatal  to  an  indictment  upon  demurrer,  if  they  are  such  as  are 
aided  by  a  verdict,  judgment  will  not  be  arrested  after  conviction. 
Commonwealth  v.  Tuck,  20  Pick.  (Mass.)  356. 

Nor  will  judgment  be  arrested  for  anything  that  could  have  been 
pleaded  in  abatement. 

By  pleading  generally  to  the  indictment  the  defendant  admits  its 
genuineness,  and  waives  all  matters  that  should  have  been  pleaded  in 
abatement.    The  decisions  to  this  point,  both  in  England  and  in  this 


1^70  ARREST   OF   JUDGMENT  (Cll.  14 

country,  are  numerous.  But  it  is  urged  that  such  cases  are  to  be  dis- 
tinguished from  the  one  at  bar,  because  here  the  defendants  de^y  that 
there  is  any  indictment,  on  the  ground  that  there  was  no  legal  grand 

jury-  .    ,  .     ,  . 

The  question  here  presented  has  often  been  raised  m  this  country, 
and  it  has  uniformly  been  held  that  it  is  too  late,  after  a  verdict,  to 
object  to  the  competency  of  the  grand  jurors  by  whom  the  indict- 
ment was  found,  or  to  the  mode  of  summoning  or  impaneHng  them. 
All  such  objections  must  be  pleaded  in  abatement.  The  question  is 
discussed  at  length  in  the  case  of  People  v.  Robinson,  2  Parker,  Cr. 
R.  (N.  Y.)  235,  where  many  of  the  American  cases  are  collected. 
The  Attorney  General,  in  the  case  before  us,  has  cited  other  cases 
where  the  same  doctrine  is  held.  And  we  are  not  aware  of  any 
cases  where  it  has  been  called  in  question. 

The  exceptions  must  be  overruled.^ 

Texn'Ey,  C.  J.,  and  RiCE,  JNIay,  Goodenow,  and  Kent,  JJ.,  con- 
curred. 


LACEFIELD  v.  STATE. 

(Supreme  Court  of  Arkansas,  1879.    34  Ark.  275,  36  Am.  Rep.  8.) 

Harrison,  j.8  *  *  *  The  record  states  that  the  arraignment 
of  the  defendant  was  waived  by  him,  but  contains  no  entry  of  a  plea 
to  the  indictment,  though  the  trial  was  had,  as  if  the  plea  of  not  guilty 
had  been  entered. 

It  was  certainly  very  irregular  to  proceed  to  trial  without  a  plea — 
there  was  no  issue  and  nothing  to  try.  It  was  an  error  for  which  the 
judgment  should  have  been  arrested.  1  Arch.  Grim.  Prac.  and  Plead. 
178-31 ;  3  Whar.  Grim.  Law,  §  3043 ;  State  v.  Fort,  1  Gar.  L.  Rep. 
510 ;  Gannon  v.  State,  5  Tex.  App.  34 ;  Bush  v.  State,  5  Tex.  App.  64 ; 
State  v.  Matthews,  20  Mo.  55. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  instructions 
to  require  the  defendant  to  plead  to  the  indictment,  and  to  be  pro- 
ceeded in  according  to  law.^ 

T  Accord:  Irregularity  in  drawing  grand  jury.  Peter  v.  State.  11  Tex. 
7G2  (1854).  Misbehavior  of  judge  in  communicating  witli  the  .iury.  People  v. 
Kelly,  94  N.  Y.  526  (1884).  Illegal  admission  of  evidence.  State  v.  Snow,  74 
Me.  354  (1883).  Misnomer  in  the  indictment.  State  v.  Thompson.  Cheves  (S. 
C.)  31  (1839).  Lack  of  verification  of  information  by  oath.  State  v.  Patton, 
94  Mo.  App.  32,  67  S.  W.  970  (1902).  Incompetence  of  juror.  State  v.  Davis, 
126  N.  C.  1007,  35  S.  E.  464  <1900). 

"On  a  motion  in  arrest  of  judgment,  •  •  *  defects  in  the  caption,  or 
even  the  omission  of  the  caption,  cannot  be  noticed.''  Aldis,  J.,  in  State  v. 
Thibeau,  30  Vt.  104  (1858). 

8  Part  of  this  case  is  omitted. 

8  Accord:  Douglass  v.  State,  3  Wis.  820  (1854).  Where  indictment  charges 
no  offense  of  which  the  trial  court  has  jurisdiction  (Truitt  v.  People,  88  111. 


Ch.  14)  ARREST   OF   JUDGMENT  171 

STATE  V.  LOHMDN. 
(Court  of  Appeals  of  South  Carolina,  1836.    8  nill,  G7.) 

Before  Mr.  Justice  Bay,  at  Charleston,  October  term,  1835. 

Per  Curiam.  No  judgment  can  be  given  on  the  verdict,  for  it  does 
not  find  the  facts  charged  in  the  indictment  of  giving  and  dehver- 
ing  liquor  to  a  slave  named  Sam,  the  property  of  Jacob  F.  Mintzing, 
but  merely  the  "giving  and  delivering  liquor  to  a  slave."  This  is  not 
a  conviction  of  the  offense  charged. 

Motion  in  arrest  of  judgment  granted.^** 

518  [1878]),  or  fails  to  state  the  county  in  which  the  crime  was  committed 
(Searcy  v.  State,  4  Tex.  450  [1849]). 

Contra:  People  v.  Osterhaut,  34  Hun  (N.  Y.)  260  (1SS4).  Under  statute. 
State  V.  Cassady,  12  Kan.  550  (1874). 

See,  also.  Ford    v.  State.  112  Ind.  373,  14  N.  E.  241  (1887). 

"It  Is  settled  by  the  decisions  in  this  state  that  for  mere  defects  or  Tincer- 
tainties  in  criminal  pleading  a  motion  in  arrest  will  not  be  sustained,  althongh 
such  defects  or  uncertainties  might  be  fatal  on  a  motion  to  quash."  Monks, 
J.,  in  Campton  v.  State.  140  Ind.  444,  39  N.  B.  916  (1805). 

Statutes  exist  very  generally  limiting  the  scope  of  the  motion  In  arrest 
of  judgment.  See  Young  v.  People,  193  111.  236,  61  N.  E.  1104  (1901) ;  Terrell 
V.  State.  41  Tex.  464  (1874) ;  Commonwealth  v.  Brown,  150  Mass.  334,  23  N 
E.  98  (1S90) ;  State  v.  Goldman,  65  N.  J.  Law,  394,  47  Atl.  641  (1900). 

10  Accord:'  Manigault  v.  State,  53  Ga.  113  (1874).  See,  also,  Slaughter  v. 
State,  24  Tex.  410  (1850) ;  State  v.  McCormick,  84  Me.  566,  24  Atl.  938  (1802). 
Cf.  State  V.  Snow,  74  Me.  354  (1883). 


172  JUDGMENT,  SENTENCE    AND    EXECUTION  (Ch.  15 

CHAPTER  XV 
JUDGMENT,  SENTENCE  AND  EXECUTION 


If  the  defendant  be  in  custody,  or  the  crime  be  capital,  he  will 
of  course  be  remanded  to  prison  in  the  interval  between  conviction 
and  sentence,  if  any  be  allowed  to  transpire.  But  if  the  cause  of  prose- 
cution be  a  mere  misdemeanor,  and  he  be  found  guilty  in  his  absence, 
*  *  *  a  capias  is  awarded  and  issued  to  bring  him  in  to  receive 
his  judgment,  and  if  he  absconds  he  may  be  prosecuted,  even  to  out- 
lawry. In  case  of  a  conviction  for  a  misdemeanor,  if  the  defendant 
be  present,  he  will  of  course  be  committed  during  the  interval,  unless 
the  prosecutor  will  consent  to  his  liberation  on  his  recognizance  to  ap- 
pear and  receive  judgment. 

1  Chit.  Cr.  Law,  664. 

The  sentence  in  capital  cases  is  usually  given  immediately  after  con- 
viction, but  the  court  rnay  adjourn  to  another  day  and  then  give  judg- 
ment. 

Id.  699. 


McCUE  V.  COM^IONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1S75.    78  Pa.  1S5,  21  Am.  'Hep.  7.) 

Error  to  the  court  of  oyer  and  terminer  of  Lycoming  county;  of 
January  term,  1875,  No.  51. 

On  the  25th  of  November,  1874,  a  true  bill  was  found  against 
Barney  McCue,  for  the  murder  of  John  Dieter,  On  the  27th  of  No- 
vember the  defendant,  being  arraigned,  pleaded  "Not  guilty,"  and  the 
same  day  the  trial  commenced,  before  Gamble,  P,  J.,  and  his  associates, 
judges  of  the  court  of  oyer  and  terminer  of  Lycoming  county,    *    ♦    * 

On  the  1st  of  December  the  jury  found  the  defendant  "guilty  of 
murder  in  the  first  degree." 

The  record  then  has  this  entry: 

"And  now,  December  6,  1874,  prisoner,  Barney  IMcCue,  brought  in- 
to open  court,  and  the  sentence  of  the  court  is:  That  you.  Barney 
McCue,  prisoner  at  the  bar,  be  taken  from  hence  to  the  jail  of  the 
county  of  Lycoming,  from  whence  you  came,  and  from  thence  to  the 
place  of  execution  within  the  walls  of  said  jail,  and  that  you  be  there 
hanged."     •     •     ♦ 

Chief  Justice  Agnew  delivered  the  opinion  of  the  court.*     ♦     *     ♦ 

But  there  is  one  error  for  which  the  sentence  of  the  court  must  be 
reversed.     It  does  not  appear  from  the  record  that  the  prisoner  was 

a  Part  of  this  case  le  omitted. 


Ch.  15)  JUDGMENT,  SENTENCE    AND    EXECUTION  173 

asked,  before  sentence,  why  sentence  of  death  should  not  be  pro- 
nounced upon  him.  This  is  a  fatal  error,  and  affects  the  merits  of 
the  case.  It  is  necessary  to  ask  the  prisoner  this,  that  he  may  have  an 
opportunity,  before  the  penahy  of  death  be  visited  upon  him,  to  plead 
in  bar  of  the  sentence  any  matter  sufficient  to  prevent  its  execution. 
He  may  have  found  out  some  good  reason  why  the  trial  was  not  legal, 
or  he  may  plead  a  pardon,  or  supervening  insanity.  The  question, 
and  the  answer  that  he  hath  nothing  to  say  other  than  that  which  he 
hath  before  said,  or  this  in  substance,  must  appear  in  the  record  before 
the  sentence  can  be  pronounced.  Prine  v.  Commonwealth,  18  Pa.  104  ; 
Dougherty  v.  Commonwealth,  69  Pa.  291.  In  this  case  the  question 
may  have  been  asked  in  fact ;  but,  as  it  does  not  appear  in  the  record, 
and  is  a  matter  of  substance,  we  must  treat  it  as  not  having  been  done. 
In  all  high  felonies,  and  especially  in  cases  of  murder,  the  presiding 
judge  should  see  that  the  record  is  made  up  properly,  before  the  term 
is  over. 

The  sentence  will  be  reversed,  in  order  that  the  case  may  be  sent 
back,  and  an  opportunity  aft'orded  to  the  prisoner  to  plead  in  bar  of 
it;  but  this  error  will  not  reverse  the  trial  and  conviction.  Jewell  v. 
Commonwealth,  23  Pa.  94,  102.    *    *    *  » 


REX  V.  CATTERALU 

(Court  of  King's  Bench,  1731.    Fitzgibbons,  266.) 

Upon  the  Return  of  a  Habeas  Corpus,  the  Commitment  was  by 
Justices  of  the  Peace  (authorized  for  that  Purpose  by  Act  of  Parlia- 
ment) for  refusing  to  account  for  a  Toll  by  him  received,  and  until  he 
vio  account,  and  pay  what  shall  be  due  to  the  Proprietors  of  the  said 
Toll:  Et  Per  Cur',  The  Commitment  is  illegal,  for  no  certain  Sum 
is  thereby  appointed  to  be  paid,  and  then  the  Defendant  may  remain  in 
Prison  for  Life:  It  was  then  moved  to  amend  the  Commitment:  Sed 
Per  Cur',  That  cannot  be  after  the  Return  filed;  and  the  Defendant 
was  discharged.' 

»  Accord:  In  treason.  Rex  v.  Speke,  3  Palk.  358  (1691).  Tn  capital  cases, 
generally.  State  v.  Ikenor.  107  La.  480.  32  South.  74  (1002) ;  Territory  v. 
Herfera,  11  N.  M.  129,  66  Pac.  523  (1901) ;  Ball  v.  U.  S..  140  U.  S.  118,  11 
Sup.  Ct.  761,  35  li.  Ed.  377  (1891).  Contra:  Gannon  v.  People,  327  111.  507. 
21  N.  E.  525.  11  Am.  St.  Rep.  147  (1889) ;  Warner  v.  State,  56  N.  .7.  Law,  6S6, 
29  Atl.  505,  44  Am.  St.  Rep.  415  (1S94).  In  some  Jurisdictions  the  allocutus 
Is  necessary,  even  in  felonies  less  than  capital.  Crocker  v.  State,  47  Ala.  53 
(1872) ;  People  v.  Jung,  70  Cal.  469,  11  Pac.  755  (1886). 

s  Compare  Brownbridse  v.  People,  38  Mich.  751  (1878) ;  People  v.  Deguea, 
54  Barb.  (N.  Y.)  105  (1S69) ;  People  v.  Hughes,  20  Cal.  257  (lSu5). 


174  JUDGMENT,  SENTENCE    AND    EXECUTION  (Ch.  15 

KIDD  V.  TERRITORY. 

(Supreme  Court  of  Oklahoma,  1900.    9  Okl.  450,  60  Tae.  114.) 

Irwin,  J.*  In  this  case  there  are  19  assignments  of  error,  but  we 
think  it  only  necessary  to  refer  to  one.  That  is  the  error  assigned  that 
the  court,  in  pronouncing  sentence,  found  the  defendant  guilty  of  a  dif- 
ferent and  higher  degree  of  offense  than  that  authorized  by  the  verdict 
of  the  jury.  A  reference  to  the  verdict  of  the  jury  will  be  found  in  the 
record.  The  verdict  reads  as  follows:  "We,  the  jury  duly  selected, 
impaneled,  and  sworn  in  the  above-entitled  cause,  find  the  defendant 
guilty  of  assault  and  battery.     F.  L.  Boling,  Foreman." 

A  reference  to  the  sentence  of  the  court  will  show  the  following: 
"October  22,  1898.  12th  Judicial  Day.  Criminal  Cause  #711.  Ter- 
ritory of  Oklahoma  v.  James  W.  Kidd.  Judgment  and  Sentence. 
Comes  now  defendant  into  open  court  for  judgment  and  sentence  on 
the  verdict  of  guilty  heretofore  rendered  in  said  cause;  and  now, 
defendant  giving  no  good  reason  why  the  judgment  and  sentence  of 
the  court  should  not  at  this  time  be  pronounced  upon  him,  on  the  ver- 
dict herein,  the  court  finds  that  the  said  defendant  is.  on  the  verdict 
herein,  guilty  of  assault  with  intent  to  kill.  It  is  therefore  considered, 
ordered,  and  adjudged  that  the  defendant,  James  W.  Kidd,  be,  and 
hereby  is,  fined  in  the  sum  of  one  hundred  ($100.00)  dollars,  and  the 

costs  of  this  action,  taxed  at  $ ,  and  that  he  be  imprisoned  in  the 

county  jail  for  a  period  of  thirty  days.  And  now  the  court  informs 
defendant  of  his  right  of  appeal,  and  bail  pending  said  appeal  is  fixed 
at  $500,  and  ten  days  given  to  take  appeal,  60  days  to  prepare  and 
serve  case-made,  ten  days  to  suggest  amendments  thereto,  to  be  signed 
and  settled  on  five  days'  notice.  To  the  rendition  of  which  said  judg- 
ment and  sentence  the  defendant  excepts  at  the  time." 

By  this  record  it  clearly  appears  that  while  the  jury  have  found 
the  defendant  guilty  of  simple  assault  and  battery,  which  under  our 
statute  is  a  misdemeanor,  the  court  has  found  the  defendant  guilty 
of  a  felony,  to  wit,  an  assault  with  intent  to  kill,  which,  we  have  no 
doubt,  is  clearly  reversible  error.  While  the  punishment  inflicted  is  the 
maximum  punishment  for  assault  and  battery,  it  is  also  the  minimum 
punishment  for  the  crime  of  assault  with  intent  to  kill,  as  provided  by 
our  statute.  Now,  it  seems  to  us  that  the  law  never  intended  that 
the  court  should  pass  sentence  and  judgment  upon  a  defendant,  find- 
ing him  guilty  of  a  greater  or  more  serious  offense  than  that  of  which 
the  jury  by  their  verdict  had  convicted  him.  In  this  case,  if  allowed 
to  stand,  the  record  would  show  that  the  jury  had  found  the  defend- 
ant guilty  of  a  misdemeanor,  and  the  court,  passing  sentence  upon  that 
verdict,  had  increased  the  degree  of  the  offense  to  make  it  a  felony. 

This  we  think  is  error,  for  which  the  judgment  is  reversed,  and  the 

*  Van  of  this  case  is  omitted 


Ch.  15)  JUDGMENT,  SENTENCE   AND    EXECUTION  175 

cause  remanded  for  sentence  in  accordance  with  the  verdict  of  the 
jury,  and  costs  assessed  to  Kingfisher  county.  All  of  the  justices  con- 
currincr/ 


BURRELL  V.  STATE. 

(Supreme  Court  of  Nebraska,  1SS9.     25  Neb.  581,  41  N.  W.  .399.) 

Cobb,  j.e  ♦  ♦  *  fhe  jury  found  the  defendant  guilty  on  16  of 
the  17  counts  of  the  indictment,  one  of  which  was  for  selling  to  a 
minor,  for  which  the  law  fixes  the  punishment  at  a  fine  of  $25.  The 
sentence  should  have  been  upon  the  theory  that  the  verdict  is  sustained 
by  the  evidence;  that  the  defendant  pay  a  fine  of  so  much  for  the  of- 
fense for  which  he  stands  convicted  upon  the  first  count  of  the  indict- 
ment, and  so  on ;  but,  instead  thereof,  there  is  one  solid  fine  assessed 
against  the  defendant,  for  the  sum  of  $1,525. 

We  have  seen  that  there  is  no  evidence  to  sustain  the  judgment  as 
to  four  of  the  counts.  Had  a  separate  fine  been  assessed  as  to  each 
count  upon  which  there  was  a  finding  by  the  jury,  only  those  upon 
the  counts  where  the  finding  is  unsustained  by  evidence  would  be  re- 
versed; but,  as  the  fine  and  judgment  are  in  solido,  it  must  be  said 
that  the  judgment  is  unsustained  by  the  evidence,  and  it  must  be  re- 
versed. 

The  judgment  of  the  district  court  is  reversed,  and  the  cause  re- 
manded for  further  proceedings.     The  other  judges  concur.^ 


Ex  parte  BURDEN. 

(Supreme  Court  of  Mississippi,  1007.     92  Miss.  14,  45  South    1,  131  Am.   St. 

Rep.  511.) 

Whitfield,  C.  J.*  The  verdict  in  this  case  was  in  the  follow- 
ing words:  "We,  the  jury,  find  the  defendant  guilty  of  assault  and 
battery  with  intent  to  commit  manslaughter."  Under  the  case  of 
Traube  v.  State,  56'  ]\Iiss.  153,  this  has  been  determined  to  be  a  mere 
conviction  of  assault  and  battery;  the  words  "with  intent  to  commit 
manslaughter"  being  mere  surplusage.  We  have,  therefore,  a  con- 
viction for  a  misdemeanor.  The  learned  circuit  judge,  misinterpreting 
this  verdict,  held  it  to  be  a  conviction  for  a  felony,  and  sentenced  the 

B  Accord:  Where  the  court  imposed  a  lighter  sentence  than  authorized  by 
the  verdict.     Cole  v.  People,  84  111.  216  (1876). 

6  Part  of  the  opinion  only  is  reprinted. 

7  Cf  Stephens  v.  State,  53  N.  J.  Law,  245,  21  Atl.  1038  (1891) :  Lefforge  v. 
State,  129  Ind.  551,  29  N.  E.  34  (1891) ;  People  v.  Carter,  4S  Hun  (N.  Y.)  16i> 
(1888 1. 

8  Part  of  this  case  is  omitted. 


176  JUDGMENT,  SENTENCE    AND    EXECUTION  (Cll.  15 

defendant  to  six  years  in  the  penitentiary.  This  sentence  he  had  no 
power  or  jurisdiction  to  impose.  The  distinction,  abundantly  estab- 
lished by  authority,  is  between  a  sentence  which  is  merely  excessive 
or  erroneous,  regard  being  had  to  the  particular  offense,  and  a  sen- 
tence which  is  absolutely  void.  In  the  former  case  the  writ  of  habeas 
corpus  cannot  be  availed  of,  but  the  party  must  appeal ;  else  the  writ 
of  habeas  corpus  would  be  made  to  serve  the  office  intended  exclusive- 
ly for  an  appeal.    *    *    * 

In  the  case  of  a  judgment  or  sentence  which  is  merely  excessive,  it 
seems  to  be  well  settled  that,  "if  the  court  was  one  of  general  juris- 
diction, such  judgment  or  sentence  is  not  void  ab  initio  because  of  the 
excess,  but  that  it  is  good  so  far  as  the  power  of  the  court  extends, 
and  is  invalid  only  as  to  the  excess,  and  therefore  that  a  person  in  cus- 
tody under  such  a  sentence  cannot  be  discharged  on  habeas  corpus 
until  he  has  suffered  or  performed  so  much  of  it  as  it  was  within  the 
power  of  the  court  to  impose.  This  condition  exists  whenever  the 
punishment  imposed  is  of  the  nature  or  kind  prescribed  by  law  and 
merely  exceeds  the  quantity  authorized,  as  where  the  offender  is  sen- 
tenced to  a  longer  term  of  imprisonment  than  is  prescribed  for  the 
particular  offense,"  etc.  It  will  be  especially  noted  that  both  Cyc.  and 
A.  &  E.  Ency.  of  Law  declare  it  to  be  the  modern  rule,  according  to 
the  latest  and  best-considered  cases,  that,  although  the  court  may  have 
jurisdiction  over  the  subject-matter  and  over  the  person,  it  is  with- 
out jurisdiction  to  impose  a  sentence  not  appropriate  to  the  kind  and 
nature  of  the  oft'ense.     *     ♦     * 

Wherever  the  sentence  pronounced  by  the  circuit  judge  is  merely 
excessive,  or  erroneous,  or  irregular,  the  writ  of  habeas  corpus  has 
no  place,  but  the  defendant  must  appeal ;  but  wherever  the  sentence 
imposed  by  the  circuit  judge  for  the  particular  offense  of  which  the 
defendant  has  been  found  guilty  by  the  jury  is  void  for  want  of  power 
to  pronounce  that  particular  sentence,  such  sentence  is  absolutely  void, 
and  the  defendant  may  resort  to  the  writ  of  habeas  corpus  to  release 
him  from  confinement  in  pursuance  of  such  illegal  sentence. 

Here  we  have  the  case  of  a  man  convicted  of  a  misdemeanor  and 
under  sentence  as  for  a  felony.  Most  manifestly  the  sentence  is  void 
absolutely,  as  one  which  the  court  was  without  power  under  the  law 
to  pronounce  at  all.  It  is  not  correct  to  say  that,  if  the  circuit  judge 
interpreted  this  verdict  to  be  a  verdict  of  guilty  of  a  felony,  he  was 
under  the  duty  to  sentence  as  for  a  felony.  Whether  the  defendant 
was  convicted  of  a  misdemeanor  or  a  felony  as  a  matter  of  fact  is  the 
test  as  to  the  sentence  to  be  imposed ;  not  what  interpretation,  right 
or  wrong,  the  circuit  judge  may  have  put  on  the  verdict.  The  ques- 
tion is,  what  was  the  defendant  convicted  of  by  this  verdict?  and  the 
answer  is  plain,  "Of  simple  assault  and  battery,"  and  that  is  a  mere 
misdemeanor.  How,  then,  could  the  circuit  judge  impose  the  penalty 
of  six  years'  imprisonment  in  the  penitentiary  on  a  defendant  con- 
victed of  mere  assault  and  battery?  It  is  manifest  that  his  juilgment 
was  absolutely  void. 


Ch.  15)  JUDGMENT,  SENTENCE   AND    EXECUTION  177 

The  argument  that  habeas  corpus  does  not  lie  to  correct  a  merely 
excessive  sentence  is  sound  enough ;  but  the  sentence  must  always  be 
one  proper  for  a  misdemeanor  where  the  conviction  is  of  a  misde- 
meanor, and  one  proper  for  felony  where  the  conviction  is  of  a  felony, 
else  we  would  introduce  interminable  confusion  into  the  law.  If  in 
this  case,  for  example,  the  circuit  judge,  treating  this  judgment,  as 
he  should  have  treated  it,  as  a  conviction  of  simple  assault  and  bat- 
tery, had  imposed  an  excessive  sentence  as  for  a  misdemeanor,  we 
would  have  had  the  case  of  a  merely  excessive  or  irregular  or  erro- 
neous sentence ;  but,  when  he  undertook  to  impose  upon  the  defend- 
ant a  felony  sentence  for  a  conviction  for  misdemeanor,  it  becomes 
perfectly  clear  that  he  imposed^a  sentence  which  he  was  without  pow- 
er or  jurisdiction  to  impose.  The  one  would  have  been  a  mere  irreg- 
ular exercise  of  power;  the  other  the  exercise  of  a  power  he  was 
wholly  without,  since  in  no  possible  case  could  he  have  imposed  a 
felony  sentence  for  a  mere  misdemeanor. 

One  other  observation  is  due  to  be  made,  however,  in  this  case,  and 
that  is  that,  since  this  verdict  is  not  a  nullity,  but  was  a  good  verdict 
for  assault  and  battery,  the  relator  should  not  be  discharged,  but 
should  be  remanded  to  the  circuit  court  for  proper  sentence  as  for  as- 
sault and  battery.  See  21  Cyc.  p.  306,  par.  15,  where  it  is  said,  citing 
authorities:  "The  court  may  also  have  jurisdiction  to  commit  a  party 
on  one  ground,  but  not  on  another,  and  may  nevertheless  commit  him 
on  both  grounds ;  and  in  such  case  the  prisoner  ought  not  to  be  dis- 
charged so  long  as  he  is  properly  imprisoned  under  the  valid  portion 
of  the  commitment." 

The  decree  is  affirmed.* 


FULTS  v.  STATE. 
(Supreme  Court  of  Tennessee.  1854.    2  Sneed,  232.) 

ToTTEN,  J.^"  At  January  term,  1854,  of  the  circuit  court  of  Grun- 
dy, David  Fults,  with  others,  was  convicted  of  an  affray.  He  was 
sentenced  to  a  fine  of  $10  and  two  days'  imprisonment.  The  fine  and 
costs  were  secured,  and  there  appears  of  record  the  following  entry : 

"On  motion  of  defendant,  David  Fults,  and  for  reasons  appearing 
to  the  satisfaction  of  the  court  by  admission  of  the  Attorney  General 
and  the  evidence  in  the  case,  he  is  permitted  to  enter  into  recognizance 
to  appear  at  the  next  term  of  this  court  and  then  undergo  the  impris- 
onment adjudged  against  him,  and  abide  by  and  perform  the  sentence 
of  the  court." 

The  defendant  gave  bail,  and  at  the  next  term  made  his  appearance 
before  the  court.     It  was  thereon  ordered  that  the  defendant  be  im- 

»  Mayes,  J.,  dissented. 

10  Part  of  this  case  is  omitted. 

Mik.Cr.Pb.(Aeridged  Ed.) — 12 


178  JUDGMENT,  SENTENCE   AND    EXECUTION  (Ch.  15 

prisoned  in  accordance  with  the  judgment  at  the  former  term,  and 
the  defendant  appealed  in  error  to  this  court. 

We  see  nothing  irregular  in  this  proceeding  to  which  the  defendant 
can  except.  There  are  many  cases,  no  doubt,  where  it  is  necessary, 
and  proper,  to  suspend  the  execution  of  the  final  judgment.  For  in- 
stance, where  the  prisoner  has  become  non  compos  between  the  judg- 
ment and  the  award  of  execution ;  or,  in  order  to  give  room  to  apply 
to  the  executive  for  a  reprieve  or  pardon,  or  in  special  cases,  where  the 
necessity  and  propriety  of  such  course  are  rendered  evident  to  the 
mind  of  the  court.    Allen  v.  State,  Mart.  &  Y.  297;  4  Bl.  Com.  395. 

In  Allen's  Case  it  was  considered  that  a  right  to  petition  the  ex- 
ecutive for  a  pardon  was  a  constitutional  right,  and  as  the  prisoner 
was  convicted  of  manslaughter,  and  sentenced  to  be  branded  in  the 
hand,  under  the  law  then  in  force,  time  was  allowed  him  until  the 
next  term  to  petition  for  a  pardon.  He  was  also  permitted  to  give 
bail,  the  court  remarking:  "In  common  cases,  where  the  party  can 
give  bail  reasonably,  to  secure  his  appearance,  that  he  may  be  forth- 
coming and  subject  to  the  sentence  of  the  law,  is  all  that  the  law  re- 
quires." 

Now  it  is  true  that  the  order  does  not  state  for  what  cause  the  res- 
pite was  granted.  It  were  better,  no  doubt,  that  the  cause  be  stated, 
that  it  may  appear  to  be  such  as  the  law  will  recognize.  We  are  bound, 
however,  to  presume  from  the  silence  of  the  record  in  this  respect, 
that  the  respite  was  granted  on  sufficient  cause ;  but,  if  it  were  not,  it 
is  clear  that  the  objection  is  one  not  to  be  made  by  the  defendant  who 
takes  the  benefit  of  it. 

The  judgment  will  be  affirmed.^^ 

11  But  see  In  re  Webb,  89  Wis.  354,  62  N.  W.  177.  27  L.  R.  A.  356,  46  Am. 
St.  Rep.  846  (1895) ;    In  re  Markuson,  5  N.  D.  ISO,  64  N.  W.  939  (1895). 


Ch.  16)  APPEAL,  WKIT    OF    ERROR,  AND   CERT  ORARI,  179 

CHAPTER  XVI 
APPEAL,  WRIT  OF  ERROR,  AND  CERTIORARI 


REX  V.  INHABITANTS  OF  SETON. 

(Court  of  King's  Bench,  1797.     7  Term  Report,  373.) 

The  defendants,  the  inhabitants  of  the  township  of  Seton,  were  in- 
dicted for  not  repairing  a  road;  and  after  verdict  and  judgment  at 
the  quarter  sessions  a  certiorari  was  served  to  remove  the  record  here. 

Chambre  on  a  former  day  in  this  term  moved  to  quash  the  certiorari 
quia  improvide  emanavit,  observing  that  the  party  who  now  wished 
to  remove  the  record  could  only  do  so  by  writ  of  error. 

Law  now  showed  cause  against  that  rule,  and  insisted  that  all  the 
proceedings  below  were  stayed  by  the  issuing  of  the  certiorari,  which 
was  before  verdict  in  this  case.  In  2  Ld.  Raym.  1305,  Powell,  J.,  said : 
"A  writ  of  certiorari  removes  any  order  or  conviction,  though  they  be 
made  or  taken  after  the  teste  of  the  writ,  so  they  be  taken  before  the 
return."  And  in  that  case  the  inquisition  taken  after  the  teste  but  be- 
fore the  return  of  the  certiorari  was  quashed  by  this  court  for  defects 
appearing  on  the  inquisition. 

Lord  Kenyon,  C.  J.  In  the  case  of  summary  proceedings,  orders, 
and  convictions  before  magistrates,  the  proceedings  may  be  removed 
by  certiorari  after  judgment,  because  such  proceedings  can  only  be 
removed  by  certiorari ;  but  where  a  judgment  has  been  given  on  an 
indictment,  the  record  must  be  removed  by  writ  of  error.  If  any  fraud 
or  misconduct  had  been  imputed  to  the  magistrates  in  proceeding  not- 
withstanding the  issuing  of  the  certiorari,  that  might  have  been  a 
ground  for  a  criminal  proceeding  against  them;  and  I  believe  there 
are  instances  in  which  a  criminal  information  has  been  granted  against 
magistrates  acting  in  sessions.  In  this  case  if  the  party,  who  sued  out 
the  certiorari,  wish  to  object  to  the  proceedings,  he  must  remove  the 
record  by  writ  of  error ;    but  this  writ  must  be  quashed. 

Fm  Curiam.    Rule  absolute.^ 


LONG'S  CASE. 

(Court  of  Queen's  Bench,  1595.     Cro.  Eliz.  489.) 

William  Long  was  indicted  at  Norwich,  within  the  county  of  the 

city  of  Norwich,  of  the  felonious  stealing  of  a  piece  of  linen  cloth, 

and  was  thereof  arraigned,  and  pleaded  not  guilty,  and  was   found 

guilty,  and  prayed  his  clergy,  and  was  burnt  in  the  hand.     Upon  in- 

1  Accord:     Ilertel  v.  People,  74  111.  App.  304  (1897).     See,  also,  Thayer  T. 
Commonwealth,  12  ISIetc.  (Mass.)  9  (1S4G). 


180  APPEAL,   WKIT   OF   ERROR,  AND    CERTIORARI  (Ch.  16 

formation  to  the  court  that  this  indicting  of  him  was  by  practice,  and 
he  found  guilty  upon  small  evidence,  he  obtained  a  certiorari  to  re- 
move the  whole  record  into  the  crown  office;  which  being  removed, 
there  were  divers  exceptions  to  the  indictment  to  discharge  the  same. 
For  it  was  moved  that  it  might  well  have  been  discharged  by  excep- 
tion, and  there  needed  not  any  writ  of  error  to  avoid  it ;  and  he  could 
not  have  a  writ  of  error,  as  the  case  is,  because  he  was  a  clerk  con- 
victed only,  and  not  attainted ;  for  when  he  prayed  his  clergy,  which 
was  allowed  him,  there  never  was  any  judgment  afterwards  given. 
And  of  that  opinion  was  the  whole  court.* 


TAFF  V.  STATE. 
(Supreme  Court  of  Errors  of  Connecticut,  1872.    39  Conn.  S2.) 

Seymour,  J.  The  plaintiff  in  error  was  duly  convicted  of  violating 
the  first  section  of  "the  act  to  prevent  and  remove  nuisances."  The 
conviction  was  upon  the  presentment  of  an  informing  officer,  and 
section  13  of  the  act  provides  that  every  person  so  convicted  shall  be 
fined  not  less  than  $5  nor  more  than  $50.  It  appears  by  the  record 
that  the  fine  actually  imposed  by  the  court  is  $4,  and  because  the  fine 
is  thus  less  than  the  defendant  was  entitled  to,  he  brings  this  writ  of 
error  to  reverse  the  judgment. 

Notwithstanding  many  old  cases  to  the  contrary,  the  settled  law  in 
Connecticut  is  that  no  party  can  set  aside  a  judgment  by  writ  of  er- 
ror, unless  he  is  aggrieved  by  the  judgment  of  which  he  complains. 
This  sound  and  just  doctrine  is  so  fully  and  ably  vindicated  by  the  late 
Chief  Justice  Williams  in  the  case  of  Ailing  v.  Shelton,  16  Conn.  436, 
as  to  require  no  further  discussion.  The  only  question  before  us  is 
how  far  that  doctrine  applies  to  the  present  case. 

We  think  it  clear  that  the  sentence  to  pay  a  fine  of  $4  is  not  war- 
ranted by  the  statute.  The  thirteenth  section  is  as  peremptory  in  its 
language  in  forbidding  a  fine  of  less  than  $5  as  it  is  in  forbidding  one 
of  more  than  $50.  If,  then,  we  decide  that  the  defendant  shall  pay 
the  $4  fine,  we  decide  that  he  must  pav  a  fine  which  the  court  below 
had  no  authority  to  inflict,  and  which  the  language  of  the  statute  for- 
bids to  be  inflicted. 

Is  the  defendant  aggrieved  by  this  sentence?  If  there  is  nothing 
more  in  the  case,  he  certainly  is  aggrieved  by  an  order  to  pay  an  un- 
warrantable fine.  Can  we,  then,  use  the  defendant's  liability  to  the 
higher  penalty  as  a  ground  for  supporting  the  lower,  but  unwarranted, 
penalty,  which  appears  by  the  record  to  have  been  inflicted  ?  We  think 
we  cannot.  It  is  true  that  the  defendant  is  not  as  much  damaged  by 
the  sentence  actually  given  as  he  would  have  been  had  the  legal  scu- 

2  See,  also.  State  v.  Dantrlierty.  P,Q  W.  Va.  470.  19  R.  B.  872  n.'^04);  People 
▼.  Walker  (Cal.)  Gl  Tac.  800  (1900).     Cf.  State  v.  Morgim,  33  Md.  44  (1870). 


Ch.  IG)  APPEAL,  WRIT   OF    EKIJOR,  AND    CERTIORARI  181 

tence  been  pronounced.  But  the  legal  sentence  has  not  been  pro- 
nounced, and  we  have  no  power  to  pronounce  it. 

If  the  plaintiff  in  error  succeeds,  he  relieves  himself  from  an  un- 
lawful sentence,  and  does  not  thereby  ipso  facto  subject  himself  to  the 
lawful  penalty.  Whether  he  thereby  puts  himself  in  the  way  of  being 
subjected  to  the  lawful  penalty  upon  further  proceedings  we  have  no 
occasion  to  decide.  We  think,  therefore,  that  the  judgment,  so  far 
as  the  fine  is  concerned,  must  be  reversed. 

A  question  then  arises  what  effect  has  such  reversal  upon  the  other 
parts  of  the  judgment.  The  statute  provides  that  the  court  before 
whom  the  conviction  is  had  shall  order  the  defendant  to  remove  such 
nuisance  within  30  days.  This  order  was  made,  and  a  further  order 
that  the  defendant  pay  a  bill  of  costs.  The  case  of  Matter  of  Sweat- 
man,  1  Cow.  (N.  Y.)  144,  is  full  to  the  point  that  a  judgment  may  be 
erroneous  in  part,  and  valid  as  to  the  residue.  That  case  was  well 
considered  and  elaborately  discussed,  and  is  cited  by  us  with  appro- 
bation in  the  recent  case  of  State  v.  James,  37  Conn.  355.  The  judg- 
ment there  was  a  full  and  complete  judgment  according  to  law,  with 
the  addition  of  something  not  warranted  by  law,  and  the  maxim,  "Utile 
per  inutile  non  vitiatur,"  was  applicable,  and  applied  to  the  case. 

But  the  argument  here  for  the  plaintiff  in  error  is  that,  the  sentence 
to  pay  the  fine  being  illegal  and  reversed,  the  judgment  which  re- 
mains is  not  a  full  and  complete  judgment,  and  ought  for  that  cause 
to  be  set  aside.  But  it  is  difficult  to  see  how  the  plaintiff  in  error  can 
be  aggrieved  by  this  imperfection,  unless,  indeed,  it  be  so  imperfect  as 
for  that  cause  to  be  invalid.  If  the  statute  was  such  that  the  court 
were  prohibited  from  rendering  the  judgment  to  remove  the  nuisance 
and  pay  the  cost,  without  also  imposing  a  fine,  then  indeed,  perhaps 
the  plaintiff  in  error  might  be  aggrieved,  but  the  statute  makes  no 
such  prohibition.  On  the  contrary,  the  statute  expressly  requires  the 
court  to  order  the  removal  of  the  nuisance.  This  order  the  court 
below  made,  and  we  cannot  say  the  order  is  erroneous,  merely  be- 
cause the  court  failed  to  do  its  duty  in  respect  to  the  fine.  The  case 
of  Ailing  V.  Shelton,  is  full  to  this  point. 

The  judgment,  therefore,  of  the  superior  court  is  reversed  as  to 
the  fine,  but  in  all  respects  except  as  to  the  fine  it  is  affirmed.  In  this 
opinion  the  other  Judges  concurred.' 

«A(Torfl:  Ftrife  v.  Kennedy,  88  Mo.  341  (1885);  Montgomery  v.  i=!tate.  7 
Ohio  St.  107  (1857). 

Where  two  persons  are  jointly  Indirted,  the  court  may.  on  writ  of  error, 
affirm  the  .iiid^ment  as  to  one  defendant  and  reverse  as  to  the  other.  Fletcher 
v.  People,  '52  111.  305  (1869). 

"The  Attorney  General  admits  that  through  inadvertence  a  sentence  was 
imposed  on  the  prisoner,  which  the  law  does  not  authorize,  and  concedes, 
upon  the  authority  of  Watkins  v.  State,  14  Md.  412,  this  judgment  must 
be  reversed.  That  is  undoubtedly  so,  and  the  only  other  question  we  can 
now  decide  is  whether  upon  such  reversal  this  court  has  the  power  to 
Impose  the  proper  sentence,  or  to  remand  the  case  to  the  court  of  original 


182  APPEAL,  WUIT    OF    EIUIOR,  AND    CERTIORARI  (Ch.  10 

JOAN  V.  COMMONWEALTH. 
(Supreme  Judicial  Court  of  Massachusetts,  Bristol,  18S3.    136  Mass.  1G2.) 

By  the  Court.*  The  assignments  of  error  aver  that  the  building 
which  the  plaintiff  in  error  was  convicted  of  burning  was  not  a  dwell- 
ing house,  as  alleged  in  the  indictment,  and  that  it  was  not  the  prop- 
erty of  the  person  alleged  in  the  indictment  to  be  the  owner.  Both  of 
these  facts  were  put  in  issue  and  were  tried  in  the  superior  court.  The 
plaintiff  in  error  cannot  retry  them  upon  a  writ  of  error.  No  error 
in  the  judgment  is  shown,  and  the  evidence  offered  was  properly  re- 
jected. 

Exceptions  overruled. 

HORNBERGER  v.  STATE. 

(Supreme  Court  of  Indiana,  1S34.     5  Ind.  300.) 

Appeal  from  the  Dearborn  court  of  common  pleas. 

Stuart,  J.  Information  against  Hornberger  for  retailing,  etc.  Tri- 
al by  the  court,  fine  $10,  and  judgment  accordingly. 

Hornberger  appeals;  but  on  what  grounds  does  not  very  clearly 
appear. 

jurisdiction  for  that  purpose.  In  the  absence  of  legislation  conferring  that 
authority  upon  this  court,  it  is  clear  it  has  no  power  to  do  either  of  these 
things.  In  Watkins  v.  State,  where  the  judgment  was  reversed  for  a  sim- 
ilar defect,  the  court  say:  'The  effect  of  the  reversal  for  error  in  the  judg- 
ment itself  is  properly  stated  by  the  counsel  for  the  plaintiff  in  error  in  his 
argument.  It  defeats  all  former  proceedings  in  the  cause.  This  will  abun- 
dantly appear  by  reference  to  the  following  authorities  cited  by  him  on  this 
point:  1  Chitty's  Cr.  Law,  755;  4  Bl.  Com.  393;  Hawkins,  Bk.  2.  c.  50,  § 
19.'  In  addition  to  these  authorities  we  refer  to  several  more  recent  deci- 
sions of  the  English  and  Irish  courts  upon  the  subject,  viz..  Rex  v.  Ellis, 
5  Barn.  &  C.  395,  King  v.  Bourne,  7  Adol.  &  E.  5S.  Silversides  v.  The  Queen. 
2  Gale  &  D.  617.  and  Holland  v.  The  Queen,  2  Jebb  &  S.  357.  In  each  of 
these,  and  especially  in  the  first  two,  it  was,  upon  full  review  of  all  pre- 
vious decisions,  denied  that  a  court  of  error  had  any  power,  in  a  case  like 
this,  either  to  remand  the  record  to  the  court  below  for  the  proper  judg- 
ment, or  itself  to  pronounce  such  judgment  as  the  law  authorized,  and 
Rex  v.  Kenworthy.  1  Barn.  &  C.  711,  which  was  cited  in  support  of  the 
power  to  remand,  is  there  shown  to  be  a  case  in  which  no  judgment  had 
in  fact  been  given,  and  it  was  therefore  remitted  back  to  the  sessions  in 
order  that  a  judgment  might  be  rendered."  Miller,  J.,  in  McDonald  v.  State, 
45  Md.  90  (1876). 

*  Part  of  this  case  is  omitted. 

"It  is  only  legal  errors  which  can  be  considered  on  writs  of  error — errors 
appearing  in  the  record,  or  by  exceptions  taken  upon  the  trial.  *  ♦  *  In 
People  V.  Thompson,  41  N.  Y.  1,  the  prisoner  was  convicted  of  manslaughter 
In  the  second  degree,  and,  although  it  appeared  by  the  evidence  that  the 
prisoner  was  not  guilty  of  that  offense,  the  court  held  that,  as  there  was  no 
exception.  It  could  not  reverse  the  judgment."  Andrews,  J.,  in  Gaffuey  v. 
People,  50  N.  Y.  425  (1872). 

Accord:  aaasseu  v.  U.  S.,  142  U.  S.  140,  12  Sup.  Ct  169.  35  L.  Ed.  9b6 
aS91). 


Ch.  16)  APPEAL,  WPwIT   OF    ERROR,  AND    CERTIORARI  183 

There  was  no  exception  taken  to  any  ruling  of  the  court  in  the 
progress  of  the  trial    2  Rev.  St.  377. 

No  motion  was  made  for  a  new  trial,  nor  in  arrest  of  judgment.    2 
Rev.  St.  380. 

There  is  none  of  the  evidence  in  the  record ;  nor  does  it  appear  that 
he  even  interposed  a  motion  to  quash  the  information.  2  Rev.  St.  368. 
At  the  common  law  there  were  some  defects  which  might  be  taken 
advantage  of,  either  by  motion  to  quash,  or  by  motion  in  arrest,  or 
upon  error.  But  now  the  writ  of  error  is  abolished.  2  Rev.  St.  158 ; 
Id.  381.  The  motion  to  quash,  motion  for  a  new  trial,  and  motion  in 
arrest  of  judgment  yet  remain,  curtailed  and  modified  by  statute.  2 
Rev.  St.,  supra.  In  their  very  nature,  each  of  these  motions,  with 
their  several  incidents,  are  to  be  addressed  to  the  court  below.  But 
the  statute  does  not  leave  this  matter  in  doubt.  It  is  minutely  provided 
when,  how,  and  in  what  order  they  are  to  be  made.  2  Rev.  St.,  supra. 
If  any  ruling  of  the  court  in  the  premises  is  deemed  incorrect,  the  stat- 
ute further  points  out  the  time  and  mode  of  exception  and  appeal.  2 
Rev.  St.  377,  381. 

These  are  the  established  modes  of  raising  points  in  the  record  for 
the  consideration  of  this  court.  A  bare  appeal  cannot  of  itself  avail 
the  party  taking  it,  unless  the  preliminary  steps  to  raise  questions  in 
the  record  have  been  adopted.  It  is  not  the  errors  pomted  out  in  ar- 
gument that  we  are  to  review.  Nor,  in  general,  even  the  errors  ap- 
parent in  the  record.  But  it  is  the  errors  to  which  the  aggrieved  party 
has  excepted  at  the  time,  in  the  manner  pointed  out  in  the  foregoing 
statutes. 

Whether  there  may  not  be  some  exceptions  to  this  rule  is  not  now 
before  us  to  inquire,  and  no  opinion  is  intimated. 

It  is  sufiBcient  in  this  case  that  Hornberger  does  not  appear  as  ob- 
jecting to  anything.  There  is  consequently  nothing  presented  in  the 
record  for  us  to  review.  We  are  bound  to  presume  that  all  things 
were  done  correctly  in  the  common  pleas,  unless  the  contrary  is  made 
to  appear. 

The  whole  spirit  of  the  new  Code  is  to  hold  every  failure  to  as- 
sert a  legal  right  at  the  proper  time  to  be  a  waiver  of  that  right.  It 
gives  still  greater  consequence  to  the  legal  maxim  that  "the  law  favors 
the  vigilant."  To  this  end  it  is  specific  as  to  the  objections  available 
in  criminal  cases ;  and  it  is  specific  as  to  when,  where,  and  in  what 
manner  they  should  be  made.  The  object  seems  to  have  been  that 
cases  should  not  be  reversed  in  this  court  on  questions  never  raised 
or  agitated  in  the  court  below. 

If,  therefore,  parties  would  have  decisions  made  against  them  re- 
versed, they  must  take  the  proper  steps,  at  the  proper  time ;  and  the 
record  must  show  that  fact.  2  Rev.  St.  377,  380.  It  is  too  late  to 
raise  such  questions  for  the  first  time  in  this  court,  by  way  of  argu- 
ment. 


184  APPEAL,  WRIT    OF    ERROR,   AND    CERTIORARI  (Ch.  16 

This  doctrine  does  not  conflict  with  Divine  v.  State,  4  Ind.  240; 
for  there  the  defendant  interposed  a  motion  to  quash. 

Nor  does  it  conflict  with  Hare  v.  State,  4  Ind.  241 ;  for  there  the 
defective  allegation  was  aided  by  the  evidence. 

Nor  does  it  conflict  with  Wood  v.  State  (at  the  present  term)  5 
Ind.  433 ;  for  that  case  is  governed  by  the  law  in  force  prior  to  the 
taking  effect  of  the  Revised  Statutes. 

There  being  no  question  raised  in  the  record,  and  nothing  for  us 
to  decide,  the  judgment  of  the  common  pleas  must  stand. 

Per  Curiam.    The  judgment  is  affirmed,  with  costs." 


UNITED  STATES  v.  SANGES  et  al. 

(Supreme  Court  of  the  United  States,  1892.    144  U.  S.  310,  12  Sup.  Ct  609,  86 

L.  Ed.  445.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Georgia. 

Indictment  of  George  Sanges,  Dennis  Alexander,  Isaac  Smith,  and 
Charles  Porter  for  murder.  *  *  *  The  defendants  demurred  to 
the  indictment.     *     *     * 

On  October  5,  1891,  the  Circuit  Court,  held  by  Mr.  Justice  Lamar 
and  Judge  Newman,  adjudged  that  the  demurrer  was  well  founded 
in  law,  and  that  it  be  sustained,  and  the  indictment  quashed.  48 
Fed.  78. 

This  writ  of  error  was  thereupon  sued  out  by  the  United  States, 
and  was  allowed  by  the  presiding  justice.  The  defendants  in  error 
moved  to  dismiss  the  writ  of  error  for  want  of  jurisdiction. 

Mr,  Justice  Gray,  delivered  the  opinion  of  the  court.®  The  juris- 
diction of  this  court  is  invoked  by  the  United  States  under  that  provi- 
sion of  the  judiciary  act  of  1891  by  which  "appeals  or  writs  of  error 
may  be  taken  from  the  District  Courts  or  from  the  existing  Circuit 
Courts  direct  to  the  Supreme  Court,"  "in  any  case  that  involves  the 
construction  or  application  of  the  Constitution  of  the  United  States." 
Act  March  3,  1891,  c.  517,  §  5,  26  Stat.  p.  827  (U.  S.  Comp.  St.  1901, 
p.  549). 

But  the  question  which  lies  at  the  very  threshold  is  whether  this 
provision  has  conferred  upon  the  United  States  the  right  to  sue  out 
a  writ  of  error  in  any  criminal  case. 

This  statute,  like  all  acts  of  Congress,  and  even  the  Constitution  it- 
self, is  to  be  read  in  the  light  of  the  common  law,  from  which  our  sys- 
tem of  jurisprudence  is  derived.  Charles  River  Bridge  v.  Warren 
Bridge,  11  Pet.  420,  515,  9  L.  Ed.  773;   Rice  v.  Railroad  Co.,  1  Black, 

B  Accord:     State  v.  Lawrence.  SI  N.  C.  522  (1S79). 
«  Part  of  the  opinion  is  omitted. 


Ch.  16)  APPEAL,  WKIT    OF    ERROR,  AND    CKUTIORARI  185 

358  374,  375,  17  L.  Ed.  147;  U.  S.  v.  Carll.  105  U.  S.  611.  26  L.  Ed. 
1135;  Ex  parte  Wilson,  114  U.  S.  417,  422.  5  Sup.  Ct.  935,  29  L.  Ed. 
89 ;  1  Kent,  Comm.  336.  As  aids,  therefore,  in  its  interpretation,  we 
naturally  turn  to  the  decisions  in  England  and  in  the  several  states  of 
tlie  Union,  whose  laws  have  the  same  source. 

The  law  of  England  on  this  matter  is  not  wholly  free  from  doubt. 
But  the  theory  that  at  common  law  the  king  could  have  a  writ  of  er- 
ror in  a  criminal  case  after  judgment  for  the  defendant  has  little  sup- 
port beyond  sayings  of  Lord  Coke  and  Lord  Hale,  seeming  to  imply, 
but  by  no  means  affirming,  it,  two  attempts  in  the  House  of  Lords, 
near  the  end  of  the  seventeenth  century,  to  reverse  a  reversal  of  an 
attainder,  and  an  Irish  case  and  two  or  three  English  cases,  decided 
more  than  60  years  after  the  Declaration  of  Independence,  in  none  of 
which  does  the  question  of  the  right  of  the  crown  in  this  respect  ap- 
pear to  have  been  suggested  by  counsel  or  considered  by  the  court.  3 
Inst.  214;  2  Hale,  P.  C.  247,  248,  394,  395;  Rex  v.  Walcott,  Show. 
Pari.  Cas.  127 ;  Rex  v.  Tucker,  Show.  Pari.  Cas.  186,  1  Ld.  Raym. 
1 ;  Regina  v.  Houston  (1841)  2  Craw.  &  D.  191 ;  The  Queen  v.  Millis 

(1843)  10  Clark  &  F.  534;  The  Queen  v.  Wilson  (1844)  6  Q.  B.  620; 
The  Queen  v.  Chadwick  (1847)  11  Q.  B.  173,  205.  And  from  the  time 
of  Lord  Hale  to  that  of  Chadwick's  Case,  just  cited,  the  text-books, 
with  hardly  an  exception,  either  assume  or  assert  that  the  defendant 
(or  his  representative)  is  the  only  party  who  can  have  either  a  new 
trial  or  a  writ  of  error  in  a  criminal  case,  and  that  a  judgment  in  his 
favor  is  final  and  conclusive.  See  2  Hawk.  P.  C.  c.  47,  §  12 ;  Id.  c. 
50,  §  10  et  seq. ;  Bac.  Abr.  "Trial,"  L,  9,  "Error,"  B ;  1  Chit.  Crim. 
Law,  657,  747 ;  Starkie,  Crim.  PI.  (2d  Ed.)  357,  367,  371 ;  Archb. 
Crim.  PI.  (12th  Eng.  and  6th  Am.  Ed.)  177,  199. 

But  whatever  may  have  been,  or  may  be,  the  law  of  England  upon 
that  question,  it  is  settled  by  an  overwhelming  weight  of  American 
authority  that  the  state  has  no  right  to  sue  out  a  writ  of  error  upon  a 
judgment  in  favor  of  the  defendant  in  a  criminal  case,  except  under 
and  in  accordance  with  express  statutes,  whether  that  judgment  was 
rendered  upon  a  verdict  of  acquittal,  or  upon  the  determination  by 
the  court  of  a  question  of  law. 

In  a  few  states  decisions  denying  a  writ  of  error  to  the  state  after 
judgment  for  the  defendant  on  a  verdict  of  acquittal  have  proceeded 
upon  the  ground  that  to  grant  it  would  be  to  put  him  twice  in  jeopardy ,_ 
in   violation   of  a    constitutional   provision.      See   State   v.   Anderson 

(1844)  3  Smedes  &  M.  (Miss.)  751;  State  v.  Hand  (1845)  6  Ark. 
169,  42  Am.  Dec.  689;  State  v.  Burris  (1848)  3  Tex.  118;  People  v. 
Webb  (1869)  38  Cal.  467 ;  People  v.  Swift  (1886)  59  Mich.  529,  541, 
26  N.  W.  694. 

But  the  courts  of  many  states,  including  some  of  great  authority, 
have  denied,  upon  broader  grounds,  the  right  of  the  state  to  bring  a 


186  APPEAL,  WRIT    OF    EPaJOK,  AND    CERTIORARI  (Ch.  16 

writ  of  error  in  any  criminal  case  whatever,  even  when  the  discharge 
of  the  defendant  was  upon  the  decision  of  an  issue  of  law  by  the  court, 
as  on  demurrer  to  the  indictment,  motion  to  quash,  special  verdict, 
or  motion  in  arrest  of  judgment. 

The  Supreme  Court  of  Iowa,  in  1856,  ordered  a  writ  of  error  sued 
out  by  the  state,  after  the  defendant  had  been  acquitted  by  a  jury,  to 
be  dismissed,  not  because  to  order  a  new  trial  would  be  against  article 
1,  §  12,  of  the  Constitution  of  the  state,  declaring  that  "no  person  shall 
after  acquittal  be  tried  for  the  same  offense"  (for  the  court  expressly 
waived  a  decision  of  that  question),  but  only  because  of  "there  being  no 
law  to  authorize  a  writ  of  error  on  the  part  of  the  state  in  a  criminal 
case."     State  v.  Johnson,  2  Iowa,  549. 

The  Supreme  Court  of  Wisconsin,  in  1864,  held  that  a  writ  of  error 
did  not  lie  in  behalf  of  the  state  to  reverse  a  judgment  in  favor  of  the 
defendant  upon  a  demurrer  to  his  plea  to  an  indictment.  State  v. 
Kemp,  17  Wis.  669.  The  Supreme  Court  of  Missouri,  in  1877,  made  a 
similar  decision,  overruHng  earlier  cases  in  the  same  court.  State  v. 
Copeland,  65  Mo.  497.  And  the  Supreme  Court  of  Florida,  in  1881, 
held  that  the  state  was  not  entitled  to  a  writ  of  error  to  reverse  a  judg- 
ment quashing  an  indictment,  and  discharging  the  accused.  State  v. 
Burns,  18  Fla.  185. 

In  those  states  in  which  the  government  in  the  absence  of  any  statute 
expressly  giving  it  the  right,  has  been  allowed  to  bring  error,  or  appeal 
in  the  nature  of  error,  after  judgment  for  the  defendant  on  demurrer 
to  the  indictment,  motion  to  quash,  special  verdict,  or  motion  in  arrest 
of  judgment,  the  question  appears  to  have  become  settled  by  early 
practice  before  it  was  contested.     *     *     * 

In  many  of  the  states,  indeed,  including  some  of  those  above  men- 
tioned, the  right  to  sue  out  a  writ  of  error,  or  to  take  an  appeal  in  the 
nature  of  a  writ  of  error,  in  criminal  cases,  has  been  given  to  the  state 
by  positive  statute.  But  the  decisions  above  cited  conclusively  show 
that  under  the  common  law,  as  generally  understood  and  administered 
in  the  United  States,  and  in  the  absence  of  any  statute  expressly  giving 
the  right  to  the  state,  a  writ  of  error  cannot  be  sued  out  in  a  criminal 
case  after  a  final  judgment  in  favor  of  the  defendant,  whether  that 
judgment  has  been  rendered  upon  a  verdict  of  acquittal,  or  upon  a 
determination  by  the  court  of  an  issue  of  law.  In  either  case,  the  de- 
fendant, having  been  once  put  upon  his  trial  and  discharged  by  the 
court,  is  not  to  be  again  vexed  for  the  same  cause,  unless  the  legis- 
lature, acting  within  its  constitutional  authority,  has  made  express 
provision  for  a  review  of  the  judgment  at  the  instance  of  the  govern- 
ment. 

[The  court  here  discussed  the  acts  of  Congress  and  continued:] 

In  none  of  the  provisions  of  this  act,^  defining  the  appellate  juris- 

T  Judiciary  Act  March  3,  1891,  c.  517,  2G  Stat.  826  (U.  S.  Comp.  St.  1901, 
p.  547). 


Ch.  16)  APPEAL,  WKIT   OF    ERROR,  AND    CERTIORARI  187 

diction,  either  of  this  court  or  of  the  Circuit  Court  of  Appeals,  is  there 
any  indication  of  an  intention  to  confer  upon  the  United  States  the 
right  to  bring  up  a  criminal  case  of  any  grade  after  judgment  below  in 
favor  of  the  defendant.  It  is  impossible  to  presume  an  intention  on 
the  part  of  Congress  to  make  so  serious  and  far-reaching  an  innova- 
tion in  the  criminal  jurisprudence  of  the  United  States. 
Writ  of  error  dismissed  for  want  of  jurisdiction. 


INDEX 


[the  figures  kefeb  to  PAaSB] 


ABATEMENT, 

matters  pleadable  in.    Carver,  168. 

ACCESSARY, 

how  charged  in  indictment.    Hatchett,  106 ;   107  n. ;  Thompson,  108. 

ADDITION, 

necessity  for  in  indictment.    McDowell,  99. 
omission  to  state,  when  cured.     100  n. 
statute  of.    McDowell,  99 ;   100  n. 

ALLOCUTION, 

necessity  for.    McCue,  172. 

AMENDMENT, 

of  indictment.    Odington,  112 ;    Anon.,  113j   Anon.,  113 ;   Rodley.  114. 
of  information.     Wilkes,  113  n. 
of  sentence.    Catterall,  173. 

APPEAL, 

as  a  method  of  prosecution.     Hale,  IS. 
as  a  means  of  review.    Hornberger,  182. 

APPEARANCE,  see  Presence. 

ARRAIGNMENT, 

what  is.     Hale,  116. 
waiver  of.     Hack,  117. 

ARREST, 

definition  of.    Dalton,  22. 

what  constitutes.     Russen,  22;    Nugent,  23;    Grosse,  22  n. 

right  of  private  person  to  arrest.     Bracton,  24 ;  Carey,  24 ;   Holley,  24  n. ; 

Taylor.  27;    Rice,  32. 
formalities  in  making.    Carey,  24 ;   Taylor,  27 ;   Mackalley,  29 ;   Rice,  32. 
when  warrant  necessary.    Carey,  24;   Taylor,  27. 
what  warrant  must  show.    West,  35  n. ;    Brady,  35  n. 
who  may  execute  warrant  of.     Keeper,  25  n. ;   Rice,  32. 
of  fugitive  in  another  jurisdiction.    Keeper,  25  n. ;   Taylor,  27. 
when  magistrate  may.     Windham,  45 ;    Blodgett,  45 ;    Kimberley,  49. 
time  of  making.     Mackalley,  29 ;   Anon.,  31 ;   Anon.,  32. 
overcoming  resistance  to.     Rice,  32. 

treatment  of  person  under.     Thatcher,  36  n. ;    Scavage,  47. 
of  judgment. 

causes  for.  In  general.     Carver,  168. 

pregnancy  as  cause  for.     Arden,  166. 

insanity  as  cause  for.     Vann,  167;    Brinyea,  168  n. 

defect  in  composition  of  grand  jury  as  cause  for.    Carver,  168. 

defect  in  indictment  as  cause  for.    Carver,  168. 

failure  to  plead,  as  cause  for.     Lacefleld,  170. 

defect  in  verdict,  as  cause  for.     Lohmdn,  171. 

when  motion  in,  must  be  made.     Carver,  168. 

AUTREFOIS  ACQUIT,  see  Jeopardy. 
AUTREFOIS  CONVICT,  see  Jeopardy. 

Mik.Ck.Pb.(Abkidged  Ed.)  (189) 


190  INDEX 

[The  figures  refer  to  pages] 
BAIL. 

effect  of  verdict  of  Inquest  on  right  to.    Pepper,  48. 
what  offenses  are  bailable.     Judd,  48. 
illness  as  reason  for.     Wyndham,  49. 

when  offense  committed  in  foreign  jurisdiction.    Kimberley,  49. 
extent  of  undertaking  of  surety.     Itidpath,  50 ;    51  n. ;    Gresham,  51  n. ; 
Devine,  51  n. 

BENEFIT  OF  CLERGY, 

allowance  of.     Sutcliffe,  166. 

CERTIORARI, 

when  available.     Inhabitants,  179;    Long,  179. 

CONVICTION, 

of  lesser  offense.     Hunter,  151. 

of  different  offense.     Green,  152. 

of  joint  defendants.     Klein,  153;   Turner,  154. 

COUNSEL, 

assignment  of.    Fitzharris,  117. 

COUNTS, 

charging  crime  in  several.     Chitty,  110. 

effect  of  defective  counts  on  verdict.    Faderman,  120. 

CUSTODY, 

of  defendant  between  conviction  and  sentence.     Chitty,  172. 

DEMURRER, 

effect  of  overruling.     Hume,  71;   Faderman,  120. 

DISCONTINUANCE, 

right  of  accused  to  object  to.     Smith,  122. 

DISJUNCTIVE  AVERMENTS, 
in  indictment.     68  n. 

DUPLICITY, 

what  constitutes.     Smith,  68;   Twitchell,  69;    Sprouse,  69;   Holmes,  69  n. 

ELECTION, 

putting  prosecutor  to.    Davis,  124. 

ERROR, 

effect  of,  in  judgment.     McDonald,  181  n. 
writ  of. 

when  available.     Inhabitants,  179;    Long,  179;    Taff,  180. 

what  considered  on.     Joan,  182;    Gaffney,  182  n. 

right  of  state  to.     Sanges,  184. 
coram  nobis. 

EVIDENCE, 

before  grand  jury.    53  n. ;    54  n. 

EXECUTION, 

pregnancy  as  cause  for  stay  of.     1C7  n. 

EXTRADITION, 

between  a  state  and  a  foreign  country.    Holmes,  40  n. 
in  the  United  States.    Dennison,  37 ;   Mohr,  40 ;   Roberts,  44  n. ;   Omelas, 
44  n. 

HABEAS  CORPUS. 

function  of  writ.     Mohr,  40;    Burden,  175. 

IDEM  SONANS, 

in  name.     Foster,  99 ;    Davis,  99  n. 

INDICTMENT, 

nature  of.     Blackstone,  16. 
necessity  for.    Anderson,  IS ;    20  n. 


INDEX  191 

[The  figures  refer  to  pages] 
INDICTMENT— Continued, 
caption  of. 

nature  of.     Hale,  57 ;    Stone,  58  n. ;    Bennett,  58. 

form  of.     Bennett.  .58. 

necessity  for.     Marion,  58  n. ;    Wasden,  58  n.;    Goodloe,  58  n. 

amendment  of.     Stone,  58  n. 
commencement  of. 

form  of.     Bennett,  58;    Hale,  60;    Archbold,  61. 
conclusion  of. 

form   of.     Hale.   60;    Hawkins,  61;    Clerk,   GG;    Anon.,   67;    Anon,, 
67;    Anon.,  67. 

as  aid  to  imperfect  allegations  in.     Keerl,  79. 
language  of.     Hale,  59;    59  n. ;    Gilbert,  65. 
use  of  abbreviations  in.     Hale,  59. 
use  of  figures  in.     60  n. 
requisites  of.  In  general.     Hale,  59. 
requisites  of,  for  homicide. 

in  general.    Hale,  82  n. 

description  of  wound.   Conley,  80;    Haydon,  83  n. 

averment  of  death  as  result  of  wound.     Keerl,  79. 

averment  of  cause  of  wounds.     Conley,  SO. 
requisites  of,  for  attempt     Doran.   89. 
necessity  for  certainty  in.     Hale,  59;    Borrough,  66;    Robe,  66;    Smith, 

68;    Anon.,  90. 
necessity  that  averments  be  positive.     Whitehead,  65. 
averment  of  facts  necessary  to  constitute  crime.     Stride.  77;    Keerl.  79; 
Conley,  SO;    Pearce,  83;    Haddonfield,  84;    Harman,  85;    Hersey, 
85;    Trigg,  87. 

when  crime  is  one  of  omission.     Haddonfield,  84. 
averment  of  place  of  offense.     Hume,  71;    Anon.,  90;    94  n. ;    Auburn. 
92. 

repetition  of.     Kennedy,  93. 
averment  of  time  of  offense.     Dandy,  73 ;   95  n. ;    Anon.,  90 ;    Mason,  91 ; 
Mollett,  91;    Beaton,  92;    Auburn,  92;    Eawson,  93  n. 

repetition  of.     Kennedy,  93. 
description  of  persons  in,  see  Name, 
description  of  property  in,  see  Property, 
necessity  for  alleging  intent.     Hersey,  85. 
necessity  for  alleging  malice.     88  n. 
necessity  for  alleging  falsity.     88  n. 
necessity  for  alleging  act  unlawful.     Hodges,  87. 
use  of  words  of  art  in.     78  n. ;    Hodges,  87. 
surplusage  in.     Morris,  73;    Fulford,  74;    Edwards,  64;    Buckley,  97. 

alleging  facts  as  unknown.     ,  95. 

charging  in  words  of  statute.     Doran,  89. 

effect  on,  of  misspelling.     Hale,  60;    Evans,  62;    Colly,  63;    63  n.;    Fos- 
ter, 99. 
effect  on,  of  mistake  In  averment  of  facts.     Evans,  62. 
effect  on,  of  omissions  in.     Edwards,  64. 
supplying  omissions  in.     Auburn,  92. 

effect  on,  of  disqualification  of  grand  juror.     Seaborn,  54. 
effect  on,  of  irregularity    in    proceedings   of    grand   jury.      Russell,    53; 

54  n. 
defects  ha,  how  objected  to.     Carver,  168. 
right  of  accused  to  copy  of.     I^tzharris,  117. 
reading,  to  accused.     117  n. 
joinder  in,  see  Joinder, 
amendment  of,  see  Amendment. 

INFORMATION, 

nature  of.    Blackstonc,  16;    Kelm,  20. 

who  should  file.     Kelm,  20;    21  n. 

restrictions  on  prosecution  by.     Anderson,  IS ;    21  n. 


102  INDEX 

[The  figures  refer  to  pages] 
INITIALS,  see  Name. 
INSANITY, 

procedure  on  plea  of,  after  verdict.     Vann,  167. 

as  cause  for  arrest  of  judgment.     Vann,  167. 

JEOPARDY,   FORMER, 

when,  attaches.     Britton,  125;    Staunjord,  125;    Jones,   127;    Hale,   127 

n.;    Kinloch,  127  n. ;    Benham,  128. 
identity  of  offense.     Staunford,  125;    Jones,  127;    Benham,  128;    Champ- 
ney,  132;    Roberts,  133;    Rosenbaum,  135;    Morey,  136. 
proof  of.     Anon.,  128 ;    Lambard,  128  n. ;    Champney,   132. 
whether,    oni   prosecution    in    a    foreign   jurisdiction.      Hutchinson.    126 

126  n. 
whether,  on  prosecution  by  court-martial.     126  n. 
whether,  when  error  in  process.     Fitzherl)ert,   126. 
misconduct  of  prisoner  as  affecting.    Jane,  127;   Hale,  127  n. 
illness  of  juror  as  affecting.     128  n. 

JOINDER, 

of  defendants.  ' 

for  nonrepair  of  road.     Anon.,  103. 

for  perjury.     Phillips,  109. 

for  blasphemy.     Tawny,  109. 

for  riot.     Sudbury,  110. 
of  offenses. 

when  allowed.     Young,  110;    Henwood,  112  n. 
JUDGMENT, 

requisites  of.     Dawkins,  148. 
responsiveness  of,  to  verdict.     Kidd,  174. 
suspension  of.    Fults,  177. 

effect  of  reversal  of.     Taff,  ISO;    McDonald,  382. 
effect  of,  on  void  verdict.     Dawkins,  330. 
I   power  of  appellate  court  to  pronounce.     McDonald,  181  n. 
what,  on  overruling  demurrer.     Faderman,  120. 
JURISDICTION, 

of  crime  committed  In  foreign  state.     Coke,  1. 

of  crime  committed  on  high  sea.     Cole,  1,  1  n. 

of  acts  done  in  one  state  taking  effect  in  another.     Simpson,  2. 

of  federal  and  state  courts.    4  n. 

JURY,  GRAND, 

how  constituted.     Blackstone,  52;    Seaborn,  54. 

mode  of  selection.    Blackstone,  52. 

qualifications  for.     Blackstone,  52. 

function  of.    Blackstone,  52. 

misconduct  of.    Anon.,  53. 

right  of  member  of,  to  testify  as  to  evidence  before.     53  n. 

finding  true  bill  by,  without  evidence.     Russell,  53. 

objection  to,  when  to  be  taken.     Seaborn,  54;    Carver,  168. 

LIMITATION,  STATUTE  OF, 

MISNOMER, 

effect  of.     Buckley,  47. 
how  taken  advantage  of.     98  n. 
whether  cured  by  verdict.     98  a. 
plea  of,  see  Plea. 

MAGISTRATE, 

jurisdiction  of.     Kimberley,  49. 

examination  by.     Scavage,  47:    Charce,  47. 

commitment  by.    Judd,  48;    Wyndham,  49. 
see,  also.  Arrest. 
MISJOINDER, 

when  cured.     Young,  111. 


INDEX  193 

[The  figures  refer  to  pages] 
MOTION,  see  Arrest  of  Judgment ;    New  Trial ;    Quashing. 

MUTE.   STANDING, 

what  amounts  to.  Eale,  116. 
proceedings  when.  Hale,  IIG. 
judgment  in  case  of.     Hale,  116. 

NAME,  ,  _      ^„ 

of  person  indicted.    ,  95;    Barnesciotta,  96. 

of  person   injured.     Buckley,  97;    Biss,  9S;    Lnmhard,  100. 

when  a  corporation  or  partnership.     Bogart,  104. 

initial  as  part  of.     Buckley,  97 ;   9S  n. 

junior  and  senior,  as  part  of.     98  n. 

when  idem  sonans.     Foster,  99. 

effect  of  misstatement  of.  98  n. 

effect  of  misspelling  of.     Foster,  99. 

NEW  TRIAL, 

power   of   court   to   grant.     Inhabitants,    159;     Gray,   160;    Green,    160. 

Stephens,  163  n. 
for  what  causes  granted.     Green,  160;    Eaves,  164. 
of  one  joint  defendant.     Mawbey,  163  n. 
motion  for,  when  to  be  made.  Bepley,  165 :    1G5  n. 
motion  in  arrest  as  motion  for.     Carver,  168. 

NIGHT, 

arrest  in  the.     Mackalley,  29. 

NOLLE  PROSEQUI, 

power  to  enter.     Smith,  122. 

as  to  part  of  indictment.     Bean.  123  n. 

power  of  court  to  order.     Hickling,  123  n. 

povv-er  to  strike  off  entry  of.     Nutting,  123  n. 

as  bar  to  prosecution.     Ridpath,  50. 
NOLO   CONTENDERE, 

effect  of  plea  of.     121  n.  ^ 

PARTICULARS,  BILL  OF, 

right  to.     Williams,  74  n. 

denial  of,  as  subject  to  review.     Dunlop,  74  n. 

PLEA, 

what,  available  to  accused.    BlacJcstone,  119. 
of  guilty,  120  n. 

of  misnomer.     Barnesciotta,  96 ;    98  n. 
failure  to  enter.     Hale,  116,  117  n.;    Lacefield,  170.   • 
waiver  of.     Plume,  70;    Hack,  117. 
as  waiver  of  defects  in  indictment.     Carver,  168. 
see  Nolo  Contendere. 
PREGNANCY, 

procedure  on  plea  of.     Arden,  166. 
as  ground  for  arrest  of  judgment.     Arden,  166. 
-as  ground  for  stay  of  execution.     167  n. 
PRESENCE   OP   DEFENDANT  DURING  TRIAL, 

Britton,  139;    Templeman,   139;    Hopt,   139;    Adams,  142;    McCue,  172. 
of  jury.     Gibson,  146. 
PRESENTMENT, 

nature  of.     Blackstone,  16. 
PRINCIPAL, 

how  charged  in  indictment.    Banson,  106. 
PROPERTY, 

description  of,  in  indictment.     Stride,  77;    Lamhard,  100;    Kettle,   101; 
Forsyth.  102 ;    Johnson,  102  n. ;    Brown,  102  n. ;    Bond,  102   n. ;    B;is 
sett,  103;    Bogart,  104. 
averment  of  ownership  of,  in  indictment.     Lamhard,  100;    Bogart,   104, 
Mik.Cr.Pr.(Abridged  Ed.) — 13 


194  INDEX 

[The  figures  refer  to  pages] 
QUASHING, 

indictment.     Davis,  124;    RiEfe,  125. 

RECORD, 

what  is  the.     Carvar,  1G8. 

presumption  from  silence  of.     Fults,  177. 

REPUGNANCY. 

what  is.  Hume.  71 ;  Sales,  72. 
in  immaterial  averments.  73  n. 
under  statutes,  73  n. 

RESPONDEAT  OUSTER, 

judgment  of,  on  overruling  demurrer.     Faderman.  120. 

SENTENCE, 

when  to  be  pronounced.     Vhitty,  172. 
presence  of  defendant  at.     McCue,  172. 
indeterminate,  validity  of.     Catterall,  173. 
responsiveness  of,  to  verdict.     Burden,  175 ;   TaCP,  80. 
effect  of  surplusage  in.     Burden,  175 ;    Taff,  180. 
on  indictment  containing  several  counts.     Burrell.  175. 
distinction  between  void  and  excessive.     Burden,  175. 
amendment  of.     Catterall,  173. 

SUNDAY, 

arrest  on.     Mackalley,  29. 

SURPLUSAGE, 

in  indictment,  see  Indictment, 
in  sentence,  see  Sentence. 

TIME. 

allowance  of,  to  consult  counsel.     Fitzharris,  117. 

UNKNOWN, 

alleging  name  as.  ,  95. 

VALUE, 

averment  of.     Lam'bard,  101. 

VENUE, 

when  act  done  in  one  county  takes  effect  in  another.     Simpson,  1;    Rob- 
bins,  4,  8  n. 
in  homicide.     Colze,  1 ;    Bobbins,  4. 
in  larceny.     Raskins,  5. 
in  burglary.     McGraw,  7  n. 
in  embezzlement.     Rogers,  7. 
in  libel.     Rogers,  7 ;    8  n. 
in  receiving  stolen  goods.     9  n. 
in  false  pretense.     9  n. 
in  forgery.     9  n. 
in  uttering.    9  n. 

of  accessorial  acts.     Eale,  9;    Carlisle,  10;    Ellison,  12  a. 
of  crime  done  in  a  county  subsequently  divided.     9  n. 
change  of. 

power  of  court  to  award.     Hewitt,  12. 

VERDICT, 

kinds  of.     Chitty,  145. 

privy.     Legingham.   145. 

sealed.     Tobin,  149. 

special.     French,  155. 

unanimity   in.     liritton,   144;    Anon.,  144;    Gibson,  146. 

procedure  in  rendering.     Chitty,  145 ;    Gibson,  146 ;    Longfellow,  149  n. ; 

Tobin,   149. 
presence  of  jurors  at  reception  of.     Gibson,  146. 
finality  of.     Dawkins,  148. 
when  juror  may  dissent  from.     149  n. 


INDEX  V  195 

[The  figures  refer  to  pages] 

VERDICT — Continued, 

retraction  of.     Gibson,  146.  .„„     „        ,.    ,-^ 

responsiveness  of,   to  charge.     Hunter,  151;    Green,  152;    French.  lt>5 ; 

Lohuidn,  171. 
what,  must  show.     Green,  152;    French,  155. 
when  indictment  contains  several  counts.     Selvester,  154. 
methods  of  reaching  agreement  on.     Fitzwater,  157;    Glidewell,  15S. 
as  cure  for  prior  irregularities.     Carver,  168. 

WAIVER, 

of  defects  in  Indictment.     Carver,  168. 
of  presence  of  defendant  during  trial.     Hopt.  139. 
see  Arraignment;    Plea;    Pardon- 

WARRANT,  see  Arrest 

WITNESS, 

arrest  of.     Anon.,  32. 
oath  of.     Russell,  53. 

WORDS, 

averment  of,  in  indictment.    CMtty,  104  n. 


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